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Halton Catholic District School Board, Niagara Catholic, Ottawa Catholic, and Toronto Catholic District School Board are openly defying Catholic teachings on gender ideology and sexuality. Some of these boards are having Pride flag raising days and requiring all schools to be festooned in Pride symbols. Some “Catholic” boards have elevated the representation of lifestyles and identities that are sins according to the Catholic Church. They have made Pride flags mandatory in all schools. Should a separate school board continue to exist that no longer promotes the faith that is the reason for a separate Catholic system to exist? Should families be forced to accept symbols in their schools that violate their beliefs and rights such as women’s rights? Are children’s rights being protected by ideology that “affirms” gender expression over biological reality? Should schools be in the business of promoting choices that may result in mutilation that is regretted later on? Families are beginning to question the indoctrination underway. Some families are no longer accepting attacks on their values.

Flying the Pride Flag on City Buildings and the Ontario Human Rights Code The Ontario Human Rights Code, the Code, is at the center of controversy over the flying of the Pride Flag at schools and municipal and provincial government buildings. Advocates for flying the flag are claiming that not flying the flag violates the Code. Opponents of flying any flags other than the Canadian flag, i.e. a neutral approach, state that it is not discriminatory to not the flag. *For the purpose of this writing the different types of flags will not be explored and a generic term of “Pride Flag” will apply as there are other tangential, contentious issues over the various flags that are not the purpose of this commentary and analysis. **This writing examines the Code and applies to any and all Code-protected groups suggesting that the Code guarantees and protects favorable treatment. This is not specific or directed at any members of the LGTBQ+ community. SCENARIO ONE A member of the LGBTQ+ community hypothetically files a complaint with the Human Rights Tribunal of Ontario (HRTO) against the Ontarian city, hypothetical city, in which they reside for not flying the Pride Flag at City Hall. In assessing this complaint for Code protection/Code breach, the legal test would include: 1. Is the applicant’s claim covered under a Social Area protected by the Code? 2 / 15 Answer: Yes, a city provides services and the applicant is engaged in a service user/recipient-service provider relationship with the city. There is a Social Area at play in this complaint. 2. Is the applicant a member of a code-protected group? Answer: Yes, members of the LGTBQ+ community would be members of sexual orientation and/or gender identity and/or gender expression. They have a Code-protected right to equal treatment. 3. Is the applicant receiving services in an adverse/differential/negative way? No, the service recipient is not receiving differential treatment by not having the Pride Flag flown. The city is not flying another flag or providing services to which the applicant is not eligible to receive. The Code protected EQUAL treatment and there Is no unequal service provision in this scenario. Case law states that a successful applicant is entitled to awards/remedies if they suffer feelings of marginalization, humiliation, and other negative feelings as a result of unequal treatment. The Divisional Court has also recognized that humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. These factors include: · Humiliation experienced by the complainant · Hurt feelings experienced by the complainant 3 / 15 · A complainant's loss of self-respect · A complainant's loss of dignity · A complainant's loss of self-esteem · A complainant's loss of confidence · The experience of victimization · Vulnerability of the complainant Sanford v. Koop, 2005 HRTO 53 (CanLII), <https://canlii.ca/t/1r7c5> The Tribunal stated it primarily applies two criteria in making the global evaluation of appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.) at para. 153. See Aranachalam v. Best Buy Canada, 2010 HRTO 1880 at paras 52 to 54. The absence of a preferential/favourable action is not unequal treatment and there is no differential treatment in the absence of an action. In this scenario, there is no service being provided to the applicant that is differential or adverse. In not flying any flag linked to Code-protected grounds, the applicant is receiving the same services as all other service recipients. While these above feelings may be alleged, they are not associated with differential treatment as there is equal treatment in not flying any flags that relate to these Code grounds. 4. Is the adverse/differential/negative treatment linked to the membership of a code-protected trait? Answer: No, there is no adverse or differential treatment to be linked to the Code-protected traits of the applicant. An applicant bears the onus of establishing that a prima facie case of discrimination has been met, after which the burden shifts to the respondents to provide a rational explanation which is not discriminatory. See Pieters at paras. 65 to 68 and Shaw at para. 30. The applicant is required to establish a link between a Code ground and the disadvantaged treatment to which he or she or they was/were subjected. See Montreal University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 (CanLII), [2007] 1 S.C.R. 161 at para. 49. In this analysis, without any differential treatment, the test for discrimination is not met. General Analysis Hypothetical Argument The applicant would likely argue that flying the flag would acknowledge a group that has been historically marginalized and oppressed. The recognition would bring a sense of inclusion to a group that has felt excluded, alienated, and persecuted for their membership to Code-protected grounds. This would be a strong argument that no one could reasonably deny. There are laws (“the abominable act of buggery”) on 5 / 15 the record from the British Empire from when Canada was a British colony that continued post-Confederation that includes amendments in 1948 and 1961 that continued to criminalize homosexuality. Despite the facts and the reasonable argument of the importance of inclusion, the Code does not provide remedy for past transgressions to a community. The Code states: “Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of sexual orientation, gender identity, gender expression.” The Code does not offer rights to address general, historical issues impacting a community. The Code protects people on an individual basis for events occurring at the time, recent within 2-3 years) of the application. The HRTO will only consider allegations of discrimination in which the most recent event occurred within one year of the time of filing the complaint. The HRTO will only address incidences that are included in the complaint that are within a “series of events” that typically go no longer than 2-3 years; although, this is assessed on a case-by-case basis. 1 / 15 Flying the Pride Flag on City Buildings and the Ontario Human Rights Code The Ontario Human Rights Code, the Code, is at the center of controversy over the flying of the Pride Flag at schools and municipal and provincial government buildings. Advocates for flying the flag are claiming that not flying the flag violates the Code. Opponents of flying any flags other than the Canadian flag, i.e. a neutral approach, state that it is not discriminatory to not the flag. *For the purpose of this writing the different types of flags will not be explored and a generic term of “Pride Flag” will apply as there are other tangential, contentious issues over the various flags that are not the purpose of this commentary and analysis. **This writing examines the Code and applies to any and all Code-protected groups suggesting that the Code guarantees and protects favorable treatment. This is not specific or directed at any members of the LGTBQ+ community. SCENARIO ONE A member of the LGBTQ+ community hypothetically files a complaint with the Human Rights Tribunal of Ontario (HRTO) against the Ontarian city, hypothetical city, in which they reside for not flying the Pride Flag at City Hall. In assessing this complaint for Code protection/Code breach, the legal test would include: 1. Is the applicant’s claim covered under a Social Area protected by the Code? 2 / 15 Answer: Yes, a city provides services and the applicant is engaged in a service user/recipient-service provider relationship with the city. There is a Social Area at play in this complaint. 2. Is the applicant a member of a code-protected group? Answer: Yes, members of the LGTBQ+ community would be members of sexual orientation and/or gender identity and/or gender expression. They have a Code-protected right to equal treatment. 3. Is the applicant receiving services in an adverse/differential/negative way? No, the service recipient is not receiving differential treatment by not having the Pride Flag flown. The city is not flying another flag or providing services to which the applicant is not eligible to receive. The Code protected EQUAL treatment and there Is no unequal service provision in this scenario. Case law states that a successful applicant is entitled to awards/remedies if they suffer feelings of marginalization, humiliation, and other negative feelings as a result of unequal treatment. The Divisional Court has also recognized that humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. These factors include: · Humiliation experienced by the complainant · Hurt feelings experienced by the complainant 3 / 15 · A complainant's loss of self-respect · A complainant's loss of dignity · A complainant's loss of self-esteem · A complainant's loss of confidence · The experience of victimization · Vulnerability of the complainant Sanford v. Koop, 2005 HRTO 53 (CanLII), <https://canlii.ca/t/1r7c5> The Tribunal stated it primarily applies two criteria in making the global evaluation of appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.) at para. 153. See Aranachalam v. Best Buy Canada, 2010 HRTO 1880 at paras 52 to 54. The absence of a preferential/favourable action is not unequal treatment and there is no differential treatment in the absence of an action. In this scenario, there is no service being provided to the applicant that is differential or adverse. In not flying any flag linked to Code-protected grounds, the applicant is receiving the same services as all other service recipients. While these above feelings may be alleged, they are not associated with 4 / 15 differential treatment as there is equal treatment in not flying any flags that relate to these Code grounds. 4. Is the adverse/differential/negative treatment linked to the membership of a code-protected trait? Answer: No, there is no adverse or differential treatment to be linked to the Code-protected traits of the applicant. An applicant bears the onus of establishing that a prima facie case of discrimination has been met, after which the burden shifts to the respondents to provide a rational explanation which is not discriminatory. See Pieters at paras. 65 to 68 and Shaw at para. 30. The applicant is required to establish a link between a Code ground and the disadvantaged treatment to which he or she or they was/were subjected. See Montreal University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 (CanLII), [2007] 1 S.C.R. 161 at para. 49. In this analysis, without any differential treatment, the test for discrimination is not met. General Analysis Hypothetical Argument The applicant would likely argue that flying the flag would acknowledge a group that has been historically marginalized and oppressed. The recognition would bring a sense of inclusion to a group that has felt excluded, alienated, and persecuted for their membership to Code-protected grounds. This would be a strong argument that no one could reasonably deny. There are laws (“the abominable act of buggery”) on 5 / 15 the record from the British Empire from when Canada was a British colony that continued post-Confederation that includes amendments in 1948 and 1961 that continued to criminalize homosexuality. Despite the facts and the reasonable argument of the importance of inclusion, the Code does not provide remedy for past transgressions to a community. The Code states: “Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of sexual orientation, gender identity, gender expression.” The Code does not offer rights to address general, historical issues impacting a community. The Code protects people on an individual basis for events occurring at the time, recent within 2-3 years) of the application. The HRTO will only consider allegations of discrimination in which the most recent event occurred within one year of the time of filing the complaint. The HRTO will only address incidences that are included in the complaint that are within a “series of events” that typically go no longer than 2-3 years; although, this is assessed on a case-by-case basis. Pakarian v. Chen, 2010 HRTO 457 (CanLII), <https://canlii.ca/t/28cp9> The advocate for flying the flag would have the burden of showing how a non-action, such as not flying the flag, would cause harm, adverse effect, and disadvantage. Non-action-that is equally applied to everyone- is inherently challenging to prove to be negative. The applicant would have to prove on a balance of probabilities that not flying the Pride Flag would be harmful to the individual applicant. 6 / 15 The Vice Chair’s ruling on this theoretical application would turn on, “ Is it more likely than not, based on the evidence presented during the Hearing, that the applicant, a member of the LGTBQ+ community, would experience adverse treatment by the city not flying the Pride Flag based on their Code-protected grounds?” There could be challenges for the hypothetical applicant to present evidence of measuring/quantifying how a non-action would cause an adverse effect. Comparison to Creed/Religion In answering that question, the adjudicator might consider the Supreme Court of Canada’s decision on prayers at municipal council meetings in the City of Saguenay. “The state’s duty of religious neutrality results from an evolving interpretation of freedom of conscience and religion. The evolution of Canadian society has given rise to a concept of this neutrality according to which the state must not interfere in religion and beliefs. The state must instead remain neutral in this regard, which means that it must neither favour nor hinder any particular belief, and the same holds true for non-belief. The pursuit of the ideal of a free and democratic society requires the state to encourage everyone to participate freely in public life regardless of their beliefs. A neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person’s freedom and dignity, and it helps preserve and promote the multicultural nature of Canadian society. The state’s duty to protect every person’s freedom of conscience and religion means that it may not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others. If the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality. The Tribunal 7 / 15 was therefore correct in holding that the state’s duty of neutrality means that a state authority cannot make use of its powers to promote or impose a religious belief. Contrary to what the Court of Appeal suggested, the state’s duty to remain neutral on questions relating to religion cannot be reconciled with a benevolence that would allow it to adhere to a religious belief.” Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (CanLII), [2015] 2 SCR 3, <https://canlii.ca/t/gh67c> 1 / 15 Flying the Pride Flag on City Buildings and the Ontario Human Rights Code The Ontario Human Rights Code, the Code, is at the center of controversy over the flying of the Pride Flag at schools and municipal and provincial government buildings. Advocates for flying the flag are claiming that not flying the flag violates the Code. Opponents of flying any flags other than the Canadian flag, i.e. a neutral approach, state that it is not discriminatory to not the flag. *For the purpose of this writing the different types of flags will not be explored and a generic term of “Pride Flag” will apply as there are other tangential, contentious issues over the various flags that are not the purpose of this commentary and analysis. **This writing examines the Code and applies to any and all Code-protected groups suggesting that the Code guarantees and protects favorable treatment. This is not specific or directed at any members of the LGTBQ+ community. SCENARIO ONE A member of the LGBTQ+ community hypothetically files a complaint with the Human Rights Tribunal of Ontario (HRTO) against the Ontarian city, hypothetical city, in which they reside for not flying the Pride Flag at City Hall. In assessing this complaint for Code protection/Code breach, the legal test would include: 1. Is the applicant’s claim covered under a Social Area protected by the Code? 2 / 15 Answer: Yes, a city provides services and the applicant is engaged in a service user/recipient-service provider relationship with the city. There is a Social Area at play in this complaint. 2. Is the applicant a member of a code-protected group? Answer: Yes, members of the LGTBQ+ community would be members of sexual orientation and/or gender identity and/or gender expression. They have a Code-protected right to equal treatment. 3. Is the applicant receiving services in an adverse/differential/negative way? No, the service recipient is not receiving differential treatment by not having the Pride Flag flown. The city is not flying another flag or providing services to which the applicant is not eligible to receive. The Code protected EQUAL treatment and there Is no unequal service provision in this scenario. Case law states that a successful applicant is entitled to awards/remedies if they suffer feelings of marginalization, humiliation, and other negative feelings as a result of unequal treatment. The Divisional Court has also recognized that humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. These factors include: · Humiliation experienced by the complainant · Hurt feelings experienced by the complainant 3 / 15 · A complainant's loss of self-respect · A complainant's loss of dignity · A complainant's loss of self-esteem · A complainant's loss of confidence · The experience of victimization · Vulnerability of the complainant Sanford v. Koop, 2005 HRTO 53 (CanLII), <https://canlii.ca/t/1r7c5> The Tribunal stated it primarily applies two criteria in making the global evaluation of appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.) at para. 153. See Aranachalam v. Best Buy Canada, 2010 HRTO 1880 at paras 52 to 54. The absence of a preferential/favourable action is not unequal treatment and there is no differential treatment in the absence of an action. In this scenario, there is no service being provided to the applicant that is differential or adverse. In not flying any flag linked to Code-protected grounds, the applicant is receiving the same services as all other service recipients. While these above feelings may be alleged, they are not associated with 4 / 15 differential treatment as there is equal treatment in not flying any flags that relate to these Code grounds. 4. Is the adverse/differential/negative treatment linked to the membership of a code-protected trait? Answer: No, there is no adverse or differential treatment to be linked to the Code-protected traits of the applicant. An applicant bears the onus of establishing that a prima facie case of discrimination has been met, after which the burden shifts to the respondents to provide a rational explanation which is not discriminatory. See Pieters at paras. 65 to 68 and Shaw at para. 30. The applicant is required to establish a link between a Code ground and the disadvantaged treatment to which he or she or they was/were subjected. See Montreal University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 (CanLII), [2007] 1 S.C.R. 161 at para. 49. In this analysis, without any differential treatment, the test for discrimination is not met. General Analysis Hypothetical Argument The applicant would likely argue that flying the flag would acknowledge a group that has been historically marginalized and oppressed. The recognition would bring a sense of inclusion to a group that has felt excluded, alienated, and persecuted for their membership to Code-protected grounds. This would be a strong argument that no one could reasonably deny. There are laws (“the abominable act of buggery”) on 5 / 15 the record from the British Empire from when Canada was a British colony that continued post-Confederation that includes amendments in 1948 and 1961 that continued to criminalize homosexuality. Despite the facts and the reasonable argument of the importance of inclusion, the Code does not provide remedy for past transgressions to a community. The Code states: “Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of sexual orientation, gender identity, gender expression.” The Code does not offer rights to address general, historical issues impacting a community. The Code protects people on an individual basis for events occurring at the time, recent within 2-3 years) of the application. The HRTO will only consider allegations of discrimination in which the most recent event occurred within one year of the time of filing the complaint. The HRTO will only address incidences that are included in the complaint that are within a “series of events” that typically go no longer than 2-3 years; although, this is assessed on a case-by-case basis. Pakarian v. Chen, 2010 HRTO 457 (CanLII), <https://canlii.ca/t/28cp9> The advocate for flying the flag would have the burden of showing how a non-action, such as not flying the flag, would cause harm, adverse effect, and disadvantage. Non-action-that is equally applied to everyone- is inherently challenging to prove to be negative. The applicant would have to prove on a balance of probabilities that not flying the Pride Flag would be harmful to the individual applicant. 6 / 15 The Vice Chair’s ruling on this theoretical application would turn on, “ Is it more likely than not, based on the evidence presented during the Hearing, that the applicant, a member of the LGTBQ+ community, would experience adverse treatment by the city not flying the Pride Flag based on their Code-protected grounds?” There could be challenges for the hypothetical applicant to present evidence of measuring/quantifying how a non-action would cause an adverse effect. Comparison to Creed/Religion In answering that question, the adjudicator might consider the Supreme Court of Canada’s decision on prayers at municipal council meetings in the City of Saguenay. “The state’s duty of religious neutrality results from an evolving interpretation of freedom of conscience and religion. The evolution of Canadian society has given rise to a concept of this neutrality according to which the state must not interfere in religion and beliefs. The state must instead remain neutral in this regard, which means that it must neither favour nor hinder any particular belief, and the same holds true for non-belief. The pursuit of the ideal of a free and democratic society requires the state to encourage everyone to participate freely in public life regardless of their beliefs. A neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person’s freedom and dignity, and it helps preserve and promote the multicultural nature of Canadian society. The state’s duty to protect every person’s freedom of conscience and religion means that it may not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others. If the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality. The Tribunal 7 / 15 was therefore correct in holding that the state’s duty of neutrality means that a state authority cannot make use of its powers to promote or impose a religious belief. Contrary to what the Court of Appeal suggested, the state’s duty to remain neutral on questions relating to religion cannot be reconciled with a benevolence that would allow it to adhere to a religious belief.” Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (CanLII), [2015] 2 SCR 3, <https://canlii.ca/t/gh67c> Competing Code Grounds: Creed The Vice Chair would also weigh if allowing the Pride Flag to be flown would breach members of other Code-protected groups rights. For example, there are several religions that include in their core beliefs and fundamental texts opposition to the groups identified in the Pride Flag. These religions and texts will not be mentioned or explored in this writing to avoid controversy but this author simply comments that the potential conflict would be explored in the decision-maker’s analysis. Analogous Examples In accepting that the city can fly the Pride Flag, the proverbial door would be open to other groups. A Muslim applicant could file a claim arguing that by not flying the “Muslim Flag” during Ramadan, the city is engaging in creed-based discrimination. An Irish applicant could argue that by not flying the “Irish Flag” on St. Patrick’s Day, the city is engaging in country of origin/ancestry/ethnic origin discrimination. People 8 / 15 in my community, those who identify their origins/ethnicity/race with the great nation of Burkina Faso, would want to fly a flag on October 15 to honour Thomas Sankara and we could argue country of origin/ancestry/ethnic origin discrimination if the flag is not flown. There would be a case for not flying a “Diwali Flag” during that creed-based celebration. The potential for discrimination claims continues ad nauseum. Questions of Import for Adjudicator The decision-maker ought reasonably to ask: · “If the state should be neutral with respect to freedom of consciousness and religion, as with the Lord’s prayer ruling, should it also be neutral with sexual orientation, gender identity and gender expression? · Would a service user that does not belong to those represented by the Pride Flag reasonably feel that the city, in the course of provision of services, might treat them negatively/adversely/differentially for not belonging to those highlighted in the flag? · Is flying the Pride Flag creating a hierarchy that runs in contravention to the Code by NOT proving equal treatment? · Would flying the Pride Flag cause adverse effect to any persons for reasons of core creed beliefs? · Is a non-action applied equally to all a negative, differential treatment that produces an adverse effect? 2 / 15 Answer: Yes, a city provides services and the applicant is engaged in a service user/recipient-service provider relationship with the city. There is a Social Area at play in this complaint. 2. Is the applicant a member of a code-protected group? Answer: Yes, members of the LGTBQ+ community would be members of sexual orientation and/or gender identity and/or gender expression. They have a Code-protected right to equal treatment. 3. Is the applicant receiving services in an adverse/differential/negative way? No, the service recipient is not receiving differential treatment by not having the Pride Flag flown. The city is not flying another flag or providing services to which the applicant is not eligible to receive. The Code protected EQUAL treatment and there Is no unequal service provision in this scenario. Case law states that a successful applicant is entitled to awards/remedies if they suffer feelings of marginalization, humiliation, and other negative feelings as a result of unequal treatment. The Divisional Court has also recognized that humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. These factors include: · Humiliation experienced by the complainant · Hurt feelings experienced by the complainant 3 / 15 · A complainant's loss of self-respect · A complainant's loss of dignity · A complainant's loss of self-esteem · A complainant's loss of confidence · The experience of victimization · Vulnerability of the complainant Sanford v. Koop, 2005 HRTO 53 (CanLII), <https://canlii.ca/t/1r7c5> The Tribunal stated it primarily applies two criteria in making the global evaluation of appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.) at para. 153. See Aranachalam v. Best Buy Canada, 2010 HRTO 1880 at paras 52 to 54. The absence of a preferential/favourable action is not unequal treatment and there is no differential treatment in the absence of an action. In this scenario, there is no service being provided to the applicant that is differential or adverse. In not flying any flag linked to Code-protected grounds, the applicant is receiving the same services as all other service recipients. While these above feelings may be alleged, they are not associated with 4 / 15 differential treatment as there is equal treatment in not flying any flags that relate to these Code grounds. 4. Is the adverse/differential/negative treatment linked to the membership of a code-protected trait? Answer: No, there is no adverse or differential treatment to be linked to the Code-protected traits of the applicant. An applicant bears the onus of establishing that a prima facie case of discrimination has been met, after which the burden shifts to the respondents to provide a rational explanation which is not discriminatory. See Pieters at paras. 65 to 68 and Shaw at para. 30. The applicant is required to establish a link between a Code ground and the disadvantaged treatment to which he or she or they was/were subjected. See Montreal University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 (CanLII), [2007] 1 S.C.R. 161 at para. 49. In this analysis, without any differential treatment, the test for discrimination is not met. General Analysis Hypothetical Argument The applicant would likely argue that flying the flag would acknowledge a group that has been historically marginalized and oppressed. The recognition would bring a sense of inclusion to a group that has felt excluded, alienated, and persecuted for their membership to Code-protected grounds. This would be a strong argument that no one could reasonably deny. There are laws (“the abominable act of buggery”) on 5 / 15 the record from the British Empire from when Canada was a British colony that continued post-Confederation that includes amendments in 1948 and 1961 that continued to criminalize homosexuality. Despite the facts and the reasonable argument of the importance of inclusion, the Code does not provide remedy for past transgressions to a community. The Code states: “Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of sexual orientation, gender identity, gender expression.” The Code does not offer rights to address general, historical issues impacting a community. The Code protects people on an individual basis for events occurring at the time, recent within 2-3 years) of the application. The HRTO will only consider allegations of discrimination in which the most recent event occurred within one year of the time of filing the complaint. The HRTO will only address incidences that are included in the complaint that are within a “series of events” that typically go no longer than 2-3 years; although, this is assessed on a case-by-case basis. Pakarian v. Chen, 2010 HRTO 457 (CanLII), <https://canlii.ca/t/28cp9> The advocate for flying the flag would have the burden of showing how a non-action, such as not flying the flag, would cause harm, adverse effect, and disadvantage. Non-action-that is equally applied to everyone- is inherently challenging to prove to be negative. The applicant would have to prove on a balance of probabilities that not flying the Pride Flag would be harmful to the individual applicant. 6 / 15 The Vice Chair’s ruling on this theoretical application would turn on, “ Is it more likely than not, based on the evidence presented during the Hearing, that the applicant, a member of the LGTBQ+ community, would experience adverse treatment by the city not flying the Pride Flag based on their Code-protected grounds?” There could be challenges for the hypothetical applicant to present evidence of measuring/quantifying how a non-action would cause an adverse effect. Comparison to Creed/Religion In answering that question, the adjudicator might consider the Supreme Court of Canada’s decision on prayers at municipal council meetings in the City of Saguenay. “The state’s duty of religious neutrality results from an evolving interpretation of freedom of conscience and religion. The evolution of Canadian society has given rise to a concept of this neutrality according to which the state must not interfere in religion and beliefs. The state must instead remain neutral in this regard, which means that it must neither favour nor hinder any particular belief, and the same holds true for non-belief. The pursuit of the ideal of a free and democratic society requires the state to encourage everyone to participate freely in public life regardless of their beliefs. A neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person’s freedom and dignity, and it helps preserve and promote the multicultural nature of Canadian society. The state’s duty to protect every person’s freedom of conscience and religion means that it may not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others. If the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality. The Tribunal 7 / 15 was therefore correct in holding that the state’s duty of neutrality means that a state authority cannot make use of its powers to promote or impose a religious belief. Contrary to what the Court of Appeal suggested, the state’s duty to remain neutral on questions relating to religion cannot be reconciled with a benevolence that would allow it to adhere to a religious belief.” Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (CanLII), [2015] 2 SCR 3, <https://canlii.ca/t/gh67c> Competing Code Grounds: Creed The Vice Chair would also weigh if allowing the Pride Flag to be flown would breach members of other Code-protected groups rights. For example, there are several religions that include in their core beliefs and fundamental texts opposition to the groups identified in the Pride Flag. These religions and texts will not be mentioned or explored in this writing to avoid controversy but this author simply comments that the potential conflict would be explored in the decision-maker’s analysis. Analogous Examples In accepting that the city can fly the Pride Flag, the proverbial door would be open to other groups. A Muslim applicant could file a claim arguing that by not flying the “Muslim Flag” during Ramadan, the city is engaging in creed-based discrimination. An Irish applicant could argue that by not flying the “Irish Flag” on St. Patrick’s Day, the city is engaging in country of origin/ancestry/ethnic origin discrimination. People 8 / 15 in my community, those who identify their origins/ethnicity/race with the great nation of Burkina Faso, would want to fly a flag on October 15 to honour Thomas Sankara and we could argue country of origin/ancestry/ethnic origin discrimination if the flag is not flown. There would be a case for not flying a “Diwali Flag” during that creed-based celebration. The potential for discrimination claims continues ad nauseum. Questions of Import for Adjudicator The decision-maker ought reasonably to ask: · “If the state should be neutral with respect to freedom of consciousness and religion, as with the Lord’s prayer ruling, should it also be neutral with sexual orientation, gender identity and gender expression? · Would a service user that does not belong to those represented by the Pride Flag reasonably feel that the city, in the course of provision of services, might treat them negatively/adversely/differentially for not belonging to those highlighted in the flag? · Is flying the Pride Flag creating a hierarchy that runs in contravention to the Code by NOT proving equal treatment? · Would flying the Pride Flag cause adverse effect to any persons for reasons of core creed beliefs? · Is a non-action applied equally to all a negative, differential treatment that produces an adverse effect? 9 / 15 SCENARIO TWO A NON-member of the LGBTQ+ community hypothetically files a complaint with the HRTO against an Ontarian city in which they reside for flying the Pride Flag at City Hall, the test would include: 1. Is the applicant’s claim covered under a Social Area protected by the Code? Answer: Yes, a city provides services and the applicant is engaged in a service user/recipient-service provider relationship with the city. There is a Social Area at play in this complaint. 2. Is the applicant a member of a code-protected group? Answer: Yes, non-members (those that identify as heterosexual, cis-gendered, and other classifications not represented by the Flag would qualify) of the LGTBQ+ community would be members of sexual orientation and/or gender identity and/or gender expression. 3. Is the applicant receiving services in an adverse/differential/negative way? Yes, if the Pride Flag were flown and the flag includes only some, not all, types of sexual orientation, gender identity and gender expression, the service recipient who identifies/d as not being in a group represented by the flag (for example, heterosexual and cis-gendered) would be excluded from the services provided by the city with respect to recognizing, promoting, highlighting those included in the flag. This would be receiving differential treatment by not being included and represented in the flying of the Pride Flag. The Code protected EQUAL treatment and there Is unequal service provision in this scenario. The service recipient would reasonably perceive that the service 10 / 15 provider prefers the groups identified and represented within the flag over their group. This is unequal treatment. Case law states that a successful applicant is entitled to awards/remedies if they suffer feelings of marginalization, humiliation, and other negative feelings as a result of unequal treatment. In this scenario, there is a service being provided to the applicant that is differential and adverse. The applicant is not receiving the same services as all other service recipients as there is no flag being flown to represent them and those in their Code-protected group(s).. A service recipient that might be in conflict (for example, a by-law issue with a neighbor) with a member of the group(s) represented in the flag would reasonably perceive that the city has a bias against the non-LGTBQ+ member and that the city has a facourable preference for those included in the groups represented by the Pride Flag. This would be differential treatment that produces an adverse effect. 4. Is the adverse/differential/negative treatment linked to the membership of a code-protected trait? Answer: Yes, there is adverse or differential treatment to be linked to the Code-protected traits of the applicant. Potential Defense The city would likely claim “Special program” as a defense and cite the clause in the Code that allows for discriminatory programs that have an ameliorative purpose. Section 14 of the Code defines “Special program”: Special programs 11 / 15 14 (1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I. R.S.O. 1990, c. H.19, s. 14 (1). Special Program Threshold The threshold is quite high and the Respondent city would have to demonstrate many factors in order to successfully apply this defense. The leading case law on “Special programs” is “Roberts”. Ontario (Human Rights Commission) v. Ontario, 1994 CanLII 1590 (ON CA), <https://canlii.ca/t/6k4x The Ontario Human Rights Commission (OHRC) has outlined a checklist that sets the requirements for a program to be protected under Section 14. Here is the policy: https://www3.ohrc.on.ca/sites/default/files/Your%20guide%20to%20Special%20programs%20and%20the%20Human%20Rights%20Code_2013.pdf The city respondent would have to demonstrate that there is a defined problem and explain how flying the flag would address this problem. The checklist includes evaluating the program. Evaluating the program 12 / 15 · A way of measuring the effectiveness of the program has been designed · Any data needed to evaluate the program goals have been defined · Ways of modifying the program in response to the results of the data collected have been considered. The city respondent would have to demonstrate how they will measure the effectiveness of the program which would be challenging as would not produce any data. The potential benefits would be subjective and feelings based. Arguments 3 / 15 · A complainant's loss of self-respect · A complainant's loss of dignity · A complainant's loss of self-esteem · A complainant's loss of confidence · The experience of victimization · Vulnerability of the complainant Sanford v. Koop, 2005 HRTO 53 (CanLII), <https://canlii.ca/t/1r7c5> The Tribunal stated it primarily applies two criteria in making the global evaluation of appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.) at para. 153. See Aranachalam v. Best Buy Canada, 2010 HRTO 1880 at paras 52 to 54. The absence of a preferential/favourable action is not unequal treatment and there is no differential treatment in the absence of an action. In this scenario, there is no service being provided to the applicant that is differential or adverse. In not flying any flag linked to Code-protected grounds, the applicant is receiving the same services as all other service recipients. While these above feelings may be alleged, they are not associated with 4 / 15 differential treatment as there is equal treatment in not flying any flags that relate to these Code grounds. 4. Is the adverse/differential/negative treatment linked to the membership of a code-protected trait? Answer: No, there is no adverse or differential treatment to be linked to the Code-protected traits of the applicant. An applicant bears the onus of establishing that a prima facie case of discrimination has been met, after which the burden shifts to the respondents to provide a rational explanation which is not discriminatory. See Pieters at paras. 65 to 68 and Shaw at para. 30. The applicant is required to establish a link between a Code ground and the disadvantaged treatment to which he or she or they was/were subjected. See Montreal University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 (CanLII), [2007] 1 S.C.R. 161 at para. 49. In this analysis, without any differential treatment, the test for discrimination is not met. General Analysis Hypothetical Argument The applicant would likely argue that flying the flag would acknowledge a group that has been historically marginalized and oppressed. The recognition would bring a sense of inclusion to a group that has felt excluded, alienated, and persecuted for their membership to Code-protected grounds. This would be a strong argument that no one could reasonably deny. There are laws (“the abominable act of buggery”) on 5 / 15 the record from the British Empire from when Canada was a British colony that continued post-Confederation that includes amendments in 1948 and 1961 that continued to criminalize homosexuality. Despite the facts and the reasonable argument of the importance of inclusion, the Code does not provide remedy for past transgressions to a community. The Code states: “Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of sexual orientation, gender identity, gender expression.” The Code does not offer rights to address general, historical issues impacting a community. The Code protects people on an individual basis for events occurring at the time, recent within 2-3 years) of the application. The HRTO will only consider allegations of discrimination in which the most recent event occurred within one year of the time of filing the complaint. The HRTO will only address incidences that are included in the complaint that are within a “series of events” that typically go no longer than 2-3 years; although, this is assessed on a case-by-case basis. Pakarian v. Chen, 2010 HRTO 457 (CanLII), <https://canlii.ca/t/28cp9> The advocate for flying the flag would have the burden of showing how a non-action, such as not flying the flag, would cause harm, adverse effect, and disadvantage. Non-action-that is equally applied to everyone- is inherently challenging to prove to be negative. The applicant would have to prove on a balance of probabilities that not flying the Pride Flag would be harmful to the individual applicant. 6 / 15 The Vice Chair’s ruling on this theoretical application would turn on, “ Is it more likely than not, based on the evidence presented during the Hearing, that the applicant, a member of the LGTBQ+ community, would experience adverse treatment by the city not flying the Pride Flag based on their Code-protected grounds?” There could be challenges for the hypothetical applicant to present evidence of measuring/quantifying how a non-action would cause an adverse effect. Comparison to Creed/Religion In answering that question, the adjudicator might consider the Supreme Court of Canada’s decision on prayers at municipal council meetings in the City of Saguenay. “The state’s duty of religious neutrality results from an evolving interpretation of freedom of conscience and religion. The evolution of Canadian society has given rise to a concept of this neutrality according to which the state must not interfere in religion and beliefs. The state must instead remain neutral in this regard, which means that it must neither favour nor hinder any particular belief, and the same holds true for non-belief. The pursuit of the ideal of a free and democratic society requires the state to encourage everyone to participate freely in public life regardless of their beliefs. A neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person’s freedom and dignity, and it helps preserve and promote the multicultural nature of Canadian society. The state’s duty to protect every person’s freedom of conscience and religion means that it may not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others. If the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality. The Tribunal 7 / 15 was therefore correct in holding that the state’s duty of neutrality means that a state authority cannot make use of its powers to promote or impose a religious belief. Contrary to what the Court of Appeal suggested, the state’s duty to remain neutral on questions relating to religion cannot be reconciled with a benevolence that would allow it to adhere to a religious belief.” Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (CanLII), [2015] 2 SCR 3, <https://canlii.ca/t/gh67c> Competing Code Grounds: Creed The Vice Chair would also weigh if allowing the Pride Flag to be flown would breach members of other Code-protected groups rights. For example, there are several religions that include in their core beliefs and fundamental texts opposition to the groups identified in the Pride Flag. These religions and texts will not be mentioned or explored in this writing to avoid controversy but this author simply comments that the potential conflict would be explored in the decision-maker’s analysis. Analogous Examples In accepting that the city can fly the Pride Flag, the proverbial door would be open to other groups. A Muslim applicant could file a claim arguing that by not flying the “Muslim Flag” during Ramadan, the city is engaging in creed-based discrimination. An Irish applicant could argue that by not flying the “Irish Flag” on St. Patrick’s Day, the city is engaging in country of origin/ancestry/ethnic origin discrimination. People 8 / 15 in my community, those who identify their origins/ethnicity/race with the great nation of Burkina Faso, would want to fly a flag on October 15 to honour Thomas Sankara and we could argue country of origin/ancestry/ethnic origin discrimination if the flag is not flown. There would be a case for not flying a “Diwali Flag” during that creed-based celebration. The potential for discrimination claims continues ad nauseum. Questions of Import for Adjudicator The decision-maker ought reasonably to ask: · “If the state should be neutral with respect to freedom of consciousness and religion, as with the Lord’s prayer ruling, should it also be neutral with sexual orientation, gender identity and gender expression? · Would a service user that does not belong to those represented by the Pride Flag reasonably feel that the city, in the course of provision of services, might treat them negatively/adversely/differentially for not belonging to those highlighted in the flag? · Is flying the Pride Flag creating a hierarchy that runs in contravention to the Code by NOT proving equal treatment? · Would flying the Pride Flag cause adverse effect to any persons for reasons of core creed beliefs? · Is a non-action applied equally to all a negative, differential treatment that produces an adverse effect? 9 / 15 SCENARIO TWO A NON-member of the LGBTQ+ community hypothetically files a complaint with the HRTO against an Ontarian city in which they reside for flying the Pride Flag at City Hall, the test would include: 1. Is the applicant’s claim covered under a Social Area protected by the Code? Answer: Yes, a city provides services and the applicant is engaged in a service user/recipient-service provider relationship with the city. There is a Social Area at play in this complaint. 2. Is the applicant a member of a code-protected group? Answer: Yes, non-members (those that identify as heterosexual, cis-gendered, and other classifications not represented by the Flag would qualify) of the LGTBQ+ community would be members of sexual orientation and/or gender identity and/or gender expression. 3. Is the applicant receiving services in an adverse/differential/negative way? Yes, if the Pride Flag were flown and the flag includes only some, not all, types of sexual orientation, gender identity and gender expression, the service recipient who identifies/d as not being in a group represented by the flag (for example, heterosexual and cis-gendered) would be excluded from the services provided by the city with respect to recognizing, promoting, highlighting those included in the flag. This would be receiving differential treatment by not being included and represented in the flying of the Pride Flag. The Code protected EQUAL treatment and there Is unequal service provision in this scenario. The service recipient would reasonably perceive that the service 10 / 15 provider prefers the groups identified and represented within the flag over their group. This is unequal treatment. Case law states that a successful applicant is entitled to awards/remedies if they suffer feelings of marginalization, humiliation, and other negative feelings as a result of unequal treatment. In this scenario, there is a service being provided to the applicant that is differential and adverse. The applicant is not receiving the same services as all other service recipients as there is no flag being flown to represent them and those in their Code-protected group(s).. A service recipient that might be in conflict (for example, a by-law issue with a neighbor) with a member of the group(s) represented in the flag would reasonably perceive that the city has a bias against the non-LGTBQ+ member and that the city has a facourable preference for those included in the groups represented by the Pride Flag. This would be differential treatment that produces an adverse effect. 4. Is the adverse/differential/negative treatment linked to the membership of a code-protected trait? Answer: Yes, there is adverse or differential treatment to be linked to the Code-protected traits of the applicant. Potential Defense The city would likely claim “Special program” as a defense and cite the clause in the Code that allows for discriminatory programs that have an ameliorative purpose. Section 14 of the Code defines “Special program”: Special programs 11 / 15 14 (1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I. R.S.O. 1990, c. H.19, s. 14 (1). Special Program Threshold The threshold is quite high and the Respondent city would have to demonstrate many factors in order to successfully apply this defense. The leading case law on “Special programs” is “Roberts”. Ontario (Human Rights Commission) v. Ontario, 1994 CanLII 1590 (ON CA), <https://canlii.ca/t/6k4x The Ontario Human Rights Commission (OHRC) has outlined a checklist that sets the requirements for a program to be protected under Section 14. Here is the policy: https://www3.ohrc.on.ca/sites/default/files/Your%20guide%20to%20Special%20programs%20and%20the%20Human%20Rights%20Code_2013.pdf The city respondent would have to demonstrate that there is a defined problem and explain how flying the flag would address this problem. The checklist includes evaluating the program. Evaluating the program 12 / 15 · A way of measuring the effectiveness of the program has been designed · Any data needed to evaluate the program goals have been defined · Ways of modifying the program in response to the results of the data collected have been considered. The city respondent would have to demonstrate how they will measure the effectiveness of the program which would be challenging as would not produce any data. The potential benefits would be subjective and feelings based. Arguments An applicant could argue that their Code-protected grounds (cis-gendered/heterosexual etc.) are not included in the flag and this is exclusionary. This exclusion would reasonably cause a non-LGTBQ+ member to believe that the city prefers some Code-protected groups over other Code-protected groups based on the flying of the flag. A service recipient would reasonably be cautious in accepting that the city would provide equal treatment in all aspects of service is they flay a flag to highlight one specific set of groups. The city’s obligations to ensure that there is no reasonable perception of bias would be explored. The city respondent would have to explain how far the preferential treatment extends. They would need to answer if the advantageous treatment is limited to the flying of the flag or does it extend to other areas of service provision. If it extends to other areas of service provision that would need to be detailed and justified. If there is no further benefit, then they would be required to justify the flying and explain the 13 / 15 actual purpose and meaning the flag is performing. If the flying of the flag is simply perfunctory and an “empty gesture” and there is no real action being done by the city to support this disadvantaged community, is this a legitimate “special program”? General Misconceptions In discussions on defending the flying of the Pride Flag as required and protected by the Code, advocates purport a deceptive application of the Code. The preamble declares the spirit and literal definition of the Code’s purpose. 4 / 15 differential treatment as there is equal treatment in not flying any flags that relate to these Code grounds. 4. Is the adverse/differential/negative treatment linked to the membership of a code-protected trait? Answer: No, there is no adverse or differential treatment to be linked to the Code-protected traits of the applicant. An applicant bears the onus of establishing that a prima facie case of discrimination has been met, after which the burden shifts to the respondents to provide a rational explanation which is not discriminatory. See Pieters at paras. 65 to 68 and Shaw at para. 30. The applicant is required to establish a link between a Code ground and the disadvantaged treatment to which he or she or they was/were subjected. See Montreal University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 (CanLII), [2007] 1 S.C.R. 161 at para. 49. In this analysis, without any differential treatment, the test for discrimination is not met. General Analysis Hypothetical Argument The applicant would likely argue that flying the flag would acknowledge a group that has been historically marginalized and oppressed. The recognition would bring a sense of inclusion to a group that has felt excluded, alienated, and persecuted for their membership to Code-protected grounds. This would be a strong argument that no one could reasonably deny. There are laws (“the abominable act of buggery”) on 5 / 15 the record from the British Empire from when Canada was a British colony that continued post-Confederation that includes amendments in 1948 and 1961 that continued to criminalize homosexuality. Despite the facts and the reasonable argument of the importance of inclusion, the Code does not provide remedy for past transgressions to a community. The Code states: “Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of sexual orientation, gender identity, gender expression.” The Code does not offer rights to address general, historical issues impacting a community. The Code protects people on an individual basis for events occurring at the time, recent within 2-3 years) of the application. The HRTO will only consider allegations of discrimination in which the most recent event occurred within one year of the time of filing the complaint. The HRTO will only address incidences that are included in the complaint that are within a “series of events” that typically go no longer than 2-3 years; although, this is assessed on a case-by-case basis. Pakarian v. Chen, 2010 HRTO 457 (CanLII), <https://canlii.ca/t/28cp9> The advocate for flying the flag would have the burden of showing how a non-action, such as not flying the flag, would cause harm, adverse effect, and disadvantage. Non-action-that is equally applied to everyone- is inherently challenging to prove to be negative. The applicant would have to prove on a balance of probabilities that not flying the Pride Flag would be harmful to the individual applicant. 6 / 15 The Vice Chair’s ruling on this theoretical application would turn on, “ Is it more likely than not, based on the evidence presented during the Hearing, that the applicant, a member of the LGTBQ+ community, would experience adverse treatment by the city not flying the Pride Flag based on their Code-protected grounds?” There could be challenges for the hypothetical applicant to present evidence of measuring/quantifying how a non-action would cause an adverse effect. Comparison to Creed/Religion In answering that question, the adjudicator might consider the Supreme Court of Canada’s decision on prayers at municipal council meetings in the City of Saguenay. “The state’s duty of religious neutrality results from an evolving interpretation of freedom of conscience and religion. The evolution of Canadian society has given rise to a concept of this neutrality according to which the state must not interfere in religion and beliefs. The state must instead remain neutral in this regard, which means that it must neither favour nor hinder any particular belief, and the same holds true for non-belief. The pursuit of the ideal of a free and democratic society requires the state to encourage everyone to participate freely in public life regardless of their beliefs. A neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person’s freedom and dignity, and it helps preserve and promote the multicultural nature of Canadian society. The state’s duty to protect every person’s freedom of conscience and religion means that it may not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others. If the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality. The Tribunal 7 / 15 was therefore correct in holding that the state’s duty of neutrality means that a state authority cannot make use of its powers to promote or impose a religious belief. Contrary to what the Court of Appeal suggested, the state’s duty to remain neutral on questions relating to religion cannot be reconciled with a benevolence that would allow it to adhere to a religious belief.” Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (CanLII), [2015] 2 SCR 3, <https://canlii.ca/t/gh67c> Competing Code Grounds: Creed The Vice Chair would also weigh if allowing the Pride Flag to be flown would breach members of other Code-protected groups rights. For example, there are several religions that include in their core beliefs and fundamental texts opposition to the groups identified in the Pride Flag. These religions and texts will not be mentioned or explored in this writing to avoid controversy but this author simply comments that the potential conflict would be explored in the decision-maker’s analysis. Analogous Examples In accepting that the city can fly the Pride Flag, the proverbial door would be open to other groups. A Muslim applicant could file a claim arguing that by not flying the “Muslim Flag” during Ramadan, the city is engaging in creed-based discrimination. An Irish applicant could argue that by not flying the “Irish Flag” on St. Patrick’s Day, the city is engaging in country of origin/ancestry/ethnic origin discrimination. People 8 / 15 in my community, those who identify their origins/ethnicity/race with the great nation of Burkina Faso, would want to fly a flag on October 15 to honour Thomas Sankara and we could argue country of origin/ancestry/ethnic origin discrimination if the flag is not flown. There would be a case for not flying a “Diwali Flag” during that creed-based celebration. The potential for discrimination claims continues ad nauseum. Questions of Import for Adjudicator The decision-maker ought reasonably to ask: · “If the state should be neutral with respect to freedom of consciousness and religion, as with the Lord’s prayer ruling, should it also be neutral with sexual orientation, gender identity and gender expression? · Would a service user that does not belong to those represented by the Pride Flag reasonably feel that the city, in the course of provision of services, might treat them negatively/adversely/differentially for not belonging to those highlighted in the flag? · Is flying the Pride Flag creating a hierarchy that runs in contravention to the Code by NOT proving equal treatment? · Would flying the Pride Flag cause adverse effect to any persons for reasons of core creed beliefs? · Is a non-action applied equally to all a negative, differential treatment that produces an adverse effect? 9 / 15 SCENARIO TWO A NON-member of the LGBTQ+ community hypothetically files a complaint with the HRTO against an Ontarian city in which they reside for flying the Pride Flag at City Hall, the test would include: 1. Is the applicant’s claim covered under a Social Area protected by the Code? Answer: Yes, a city provides services and the applicant is engaged in a service user/recipient-service provider relationship with the city. There is a Social Area at play in this complaint. 2. Is the applicant a member of a code-protected group? Answer: Yes, non-members (those that identify as heterosexual, cis-gendered, and other classifications not represented by the Flag would qualify) of the LGTBQ+ community would be members of sexual orientation and/or gender identity and/or gender expression. 3. Is the applicant receiving services in an adverse/differential/negative way? Yes, if the Pride Flag were flown and the flag includes only some, not all, types of sexual orientation, gender identity and gender expression, the service recipient who identifies/d as not being in a group represented by the flag (for example, heterosexual and cis-gendered) would be excluded from the services provided by the city with respect to recognizing, promoting, highlighting those included in the flag. This would be receiving differential treatment by not being included and represented in the flying of the Pride Flag. The Code protected EQUAL treatment and there Is unequal service provision in this scenario. The service recipient would reasonably perceive that the service 10 / 15 provider prefers the groups identified and represented within the flag over their group. This is unequal treatment. Case law states that a successful applicant is entitled to awards/remedies if they suffer feelings of marginalization, humiliation, and other negative feelings as a result of unequal treatment. In this scenario, there is a service being provided to the applicant that is differential and adverse. The applicant is not receiving the same services as all other service recipients as there is no flag being flown to represent them and those in their Code-protected group(s).. A service recipient that might be in conflict (for example, a by-law issue with a neighbor) with a member of the group(s) represented in the flag would reasonably perceive that the city has a bias against the non-LGTBQ+ member and that the city has a facourable preference for those included in the groups represented by the Pride Flag. This would be differential treatment that produces an adverse effect. 4. Is the adverse/differential/negative treatment linked to the membership of a code-protected trait? Answer: Yes, there is adverse or differential treatment to be linked to the Code-protected traits of the applicant. Potential Defense The city would likely claim “Special program” as a defense and cite the clause in the Code that allows for discriminatory programs that have an ameliorative purpose. Section 14 of the Code defines “Special program”: Special programs 11 / 15 14 (1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I. R.S.O. 1990, c. H.19, s. 14 (1). Special Program Threshold The threshold is quite high and the Respondent city would have to demonstrate many factors in order to successfully apply this defense. The leading case law on “Special programs” is “Roberts”. Ontario (Human Rights Commission) v. Ontario, 1994 CanLII 1590 (ON CA), <https://canlii.ca/t/6k4x The Ontario Human Rights Commission (OHRC) has outlined a checklist that sets the requirements for a program to be protected under Section 14. Here is the policy: https://www3.ohrc.on.ca/sites/default/files/Your%20guide%20to%20Special%20programs%20and%20the%20Human%20Rights%20Code_2013.pdf The city respondent would have to demonstrate that there is a defined problem and explain how flying the flag would address this problem. The checklist includes evaluating the program. Evaluating the program 12 / 15 · A way of measuring the effectiveness of the program has been designed · Any data needed to evaluate the program goals have been defined · Ways of modifying the program in response to the results of the data collected have been considered. The city respondent would have to demonstrate how they will measure the effectiveness of the program which would be challenging as would not produce any data. The potential benefits would be subjective and feelings based. Arguments An applicant could argue that their Code-protected grounds (cis-gendered/heterosexual etc.) are not included in the flag and this is exclusionary. This exclusion would reasonably cause a non-LGTBQ+ member to believe that the city prefers some Code-protected groups over other Code-protected groups based on the flying of the flag. A service recipient would reasonably be cautious in accepting that the city would provide equal treatment in all aspects of service is they flay a flag to highlight one specific set of groups. The city’s obligations to ensure that there is no reasonable perception of bias would be explored. The city respondent would have to explain how far the preferential treatment extends. They would need to answer if the advantageous treatment is limited to the flying of the flag or does it extend to other areas of service provision. If it extends to other areas of service provision that would need to be detailed and justified. If there is no further benefit, then they would be required to justify the flying and explain the 13 / 15 actual purpose and meaning the flag is performing. If the flying of the flag is simply perfunctory and an “empty gesture” and there is no real action being done by the city to support this disadvantaged community, is this a legitimate “special program”? General Misconceptions In discussions on defending the flying of the Pride Flag as required and protected by the Code, advocates purport a deceptive application of the Code. The preamble declares the spirit and literal definition of the Code’s purpose. Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations; And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province; In fact, there is nothing in the Code that demands preferential treatment (except for Special programs). The legislation’s purpose is to recognize the dignity and worth of every person through EQUAL treatment. There may be excellent arguments and reasons for providing special and favourable treatment to members of the LGTBQ+ community; however, the basis for these arguments is not Code-protected. 14 / 15 The above assessment is with respect to a hypothetical city that provides services to its visitors and residents and would not apply to private property and privately owned flag poles. The assessment would also be different if made against a non-public business that provides services ( a restaurant, for example) as the city services impact the lives of their service users at a higher degree and there exists a reasonable expectation of equal treatment. For example, police and fire services perceived to be biased against a non-LGTBQ+ member by virtue of a flag being flown to show a hierarchy would reasonably cause distress and adverse effect whereas a restaurant service having a perceived bias would not cause any reasonable trepidation, anxiety, or marginalization by a non-LGTBQ+ member. This analysis references specific Code-protected grounds, but the true purpose is assessing any non-governmental flag. The LGTBQ+ community deserves respect and has a right to inclusion and fair treatment. They are encouraged to use the HRTO and all mechanisms to receive the fair treatment to which they are entitled. This examination is about special interests and not about this community or these Code grounds. The purpose of the above is to examine Code-protected rights, generally, and this writing applies to all Code grounds such as race, country of origin, creed, all grounds. Any interpretation of this being hate against this group is mis-directed. This is a question about how the Code works and the purposes and role of the government. The same arguments above would apply to any group claiming the Code gives them extra privileges such as the hypothetical example of my community having a Burkina Faso Day and demanding that all cities fly my flag. Kind and humble regards D. Doga Abioye