Date Issued: November 9, 2018File: 3920Indexed as: Pleasance v. Province of British Columbia, 2018 BCHRT 3920IN THE MATTER OF THE HUMAN RIGHTS CODE
R.S.B.C. 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
B E T W E E N:Sarah PleasanceCOMPLAINANTA N D:The Province of British ColumbiaRESPONDENTS REASONS FOR DECISION Tribunal Member: [student name/number]Counsel for the Complainant: Chris CringleCounsel for the Respondent: Bert ErnestDate of Hearing: October 15, 2018Written Submissions: October 17, 2018Location of Hearing:
I. INTRODUCTION and BACKGROUND[1] The Complainant was a marriage commissioner hired by the Province of British Columbia to conduct Wedding ceremonies at various times and locations. She was one of three commissioners appointed in the Kamloops region and she has been performing marriage ceremonies for the past twenty years without incident or complaint.[2] In her role as marriage commissioner the Complainant would attend at homes, resorts, or other locations to perform non-denominational Wedding ceremonies for which she was paid a flat fee plus travel by the Respondent.[3] The Complainant is also a member of the Faith of Kindness Christian Ministries (FKCM) church in Kamloops. She is active in the congregation and volunteers regularly for its many activities including cooking meals at a local homeless shelter, sewing baby clothes for donation to low income mothers and other charitable work done by her church community. The Kamloops Society for Poverty Prevention named her the Difference Maker of the Year in 2017. [4] FKCM believes in a traditional definition of marriage as being between one man and one woman. The Complainant states that she never tried to convert people when she performed a marriage ceremony and she understood that her role as a marriage commissioner was not to preach any particular faith to those requiring her services. She was always careful not to promote or express her Christian beliefs at any marriage ceremony and even performed marriages where the people getting married were not Christian. [5] The evidence clearly shows that the Complainant was diligent in the performance of her marriage commissioner duties and there were no complaints about the service she generally provided. She did her work professionally and was always reliable and pleasant in the performance of her duties. [6] On or about May 6, 2018, the Complainant was contacted by William Salsa and Gerald Chippes. Mr. Salsa and Mr. Chippes are a same sex couple who were seeking a marriage commissioner to perform their Wedding service in June of 2018. They had heard through friends that the Complainant was an engaging and capable marriage commissioner who added both warmth and charm to a friends wedding ceremony some months earlier.[7] The Complainant politely informed Salsa and Chippes that she could not perform their Wedding ceremony as doing so would be a violation of her deeply held religious convictions. She made a point of stating to this couple that she harboured no ill will towards them and she provided Salsa and Chippes with the names of the other two marriage commissioners in the Kamloops, both of whom were prepared to perform same sex marriage services.[8] Salsa and Chippes filed a formal complaint against Mrs. Pleasance (the Complainant) with the Government of British Columbia (the Respondent). In response, the Respondent contacted the Complainant to advise her that she was expected to perform same sex marriages as part of her duties as a marriage commissioner. Again, the Complainant stated that while she loved all of Gods people, she could not violate what she viewed as very clear church teaching. She asked the Respondent to accommodate her sincere and deeply held faith by giving her the option of politely referring same sex marriage bookings to one of the other two marriage commissioners in Kamloops. The Respondent rejected this proposal and fired the Complainant as a marriage commissioner.[9} The Complainant asserts that her termination is unjustified and she is being discriminated against based upon her deeply and sincerely held religious beliefs.II. SUBMISSIONS OF THE COMPLAINANT[10] The Complainant asserts that she has the right to peacefully practice her religion that has been infringed upon by the unilateral and unfair ruling of the Respondent. She states that she understands that gay people have the legal right to marry each other in British Columbia. While she and other members of her faith community view this as sinful, the Complainant states she would not attempt to prevent a same sex marriage from happening. At the same time, the Complainant states that she could not defy her deeply held religious convictions by participating and facilitating such a marriage. [11] The Complainant draws a parallel between her situation and that of a physician who is morally opposed to abortion. A physician is entitled to refuse to perform abortions on the basis of conscience and his or her refusal to do this sort of work does not detract a womens right to choose whether or not to terminate a pregnancy. Other medical practitioners provide this service and women are not denied access to this right.[12] The Complainant argues that this is the same sort of accommodation that could easily be provided to her. There are two other marriage commissioners who are prepared to perform same sex Wedding ceremonies and as such, homosexual couples have ample access to this sort of service should they desire same. It is unfair, she argues, to force her to perform this service just like it would be unfair to force a surgeon with faith based objections to abortion to perform that sort of service.[13] The Complainant asserts that the Respondent has belittled religious faith by writing it off as something ‘you do in your head or on weekends’ without it impacting all of a person’s life. This is, she asserts, a serious misunderstanding of Christian faith or any faith for that matter. The Complainant described herself as an evangelical Christian and it is her belief that her life and words are a witness to the Lord. Part of her faith is her belief that God created male and female persons for the sanctity of marriage, and that marriage between same sex couples is a sin in the eyes of God.[14] The Complainant states that the effect of the Respondents decision sets up a hierarchy of rights saying that same-sex rights are more important than freedom of conscience and religion. This, she asserts is wrong and that all rights should be treated as being on an equal footing in society. She states that no one should be subject to any obligation or sanction because of their belief that marriage is the union of a man and woman to the exclusion of all others and Commissioners who hold a “traditional or heterosexual” definition of marriage should not be forced to find another career or be subjected to fines and punishment. “We talk about people being in the closet, well now they are saying somebody of a faith perspective is supposed to keep it in the closet,” she stated.[15] The Complainant asserts she has established a prima facie case of discrimination and therefore, the burden falls to the Respondent to show that the performance of same sex marriage ceremonies is a bona fide occupational requirement (BFOR) that cannot be accommodated without undue hardship.[16] The Complainant asserts that, even if the performance of same sex marriages is in fact a BFOR, accommodating her religious beliefs would be easy, cost the Respondent nothing, and not deny access to same sex marriage services to anyone.[17] To support this, the Complainant has referred me to the practice in the Province of Ontario where Marriage Commissioners have the ability to indicate whether or not they are prepared to perform same sex marriage services so that homosexual couples are free to select a commissioner from the list of those prepared to provide this service.[18] Accordingly, the Complainant submits that:a. She should be re-instated as a marriage commissioner
b. She should have the option of politely referring same sex couples seeking her services to one of the other two marriage commissioners in the region who are prepared to perform this service
c. She should receive the sum of $10,000 from the Respondent for insults to her dignity and their intolerance of her sincerely held religious beliefs.
d. She should receive a letter of apology from the Respondent for demeaning her faith by requiring her to perform same sex marriages. III. SUBMISSIONS OF THE RESPONDENT[19] The Respondent takes an entirely different view.[20] In citing a Saskatchewan Court of Appeal decision, they argue that the provisions of the BC Human Rights Act (the Act) are designed to protect freedom of religion by providing for both religious marriages, where the ceremony is to be performed by clergy in accordance with the beliefs, rites and sacraments of their religious faith, and also for non-religious civil marriages, where the ceremony is expressly intended to carry no religious implications.[21] In other words, religious ceremonies are for the places of worship of a given religious denomination and not within the realm of what a marriage commissioner does. The Respondent states that officiating at a civil marriage ceremony carries no implication or connotation at all that the marriage commissioner who officiates necessarily approves of the particular union.[22] The Respondent states that that no proposed marriages should be refused unless they are for legally improper purposes and to refuse to perform a same-sex marriage on this basis expresses condemnation of same-sex unions and practices as socially harmful and perverse. Thus, while performing the ceremony when asked might well be neutral, refusing to do so is an overtly discriminatory act that causes psychological harm to couples so refused and perpetuates the prejudice and inequality that gays and lesbians have suffered historically.[23] The Respondent makes two further points relating to the Complainants argument that marriage commissioners should be able to refuse to perform civil same-sex marriages because to perform them connotes condoning or approving same-sex relationships which in turn may offend an individuals religious beliefs.[24] First, if the Complainant were to be allowed to refuse to perform marriage ceremonies for homosexual couples, what would stop other individuals from refusing to provide catering services or rent banquet halls for marriage celebrations because they disapprove, on religious grounds, of same-sex relationships. But more than this, it could just as easily, and with as much validity, be made by those who provide rental living accommodation to married couples, and even those who provide restaurant meals or entertainment to the public. The desire of individuals providing these services to the public to withhold the service from same-sex couples, on grounds of religious disapproval, is not legislatively protected. [25] The Respondent points out that religious belief is at the root of much if not most of the historical discrimination against gays and lesbians. It is fair to ask, then, why it is particularly important to accommodate marriage commissioners religious beliefs in this respect.[26] Second, the Respondent asserts that the requirement that marriage commissioners perform same-sex marriages when asked to do so affects their religious objection to same-sex conduct only in a secondary way. Marriage commissioners are not themselves compelled to engage in the sexual activity they consider objectionable. Their objection is that it is sinful for others to engage in such activity.[27] Therefore the Respondent argues that the interference with the right of marriage commissioners to act in accordance with their religious belief, if compelled to perform same-sex marriages of which they disapprove on religious grounds, is trivial or insubstantial, in that it is interference that does not threaten actual religious beliefs or conduct.[29] While the Respondent concedes that the right to hold certain religious beliefs, and to engage in particular rites and practices, lie at the core of the right to religious freedom protected by s. 2(a) of the Charter, there is a difference between the right to hold certain beliefs and the right to act on those beliefs. The Respondent asserts one can only claim religious freedom to the, particularly as one moves out of the fundamental area of religious rites and practices, when that exercise does not harm or infringe on the rights of others.[31] Finally, the Respondent points out that the performance of a civil marriage by a marriage commissioner under the Act is not a religious rite or practice. Nor does the requirement to do so limit or restrict religious belief.Analysis and DecisionIV. ANALYSISLaw
[32] The onus initially falls upon the complainant to establish a prima facie case. In Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1985] 2S.C.R. 536 (OMalley), the Supreme Court of Canada stated:
A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainants favour in the absence of an answer from the Respondent-employer. (para. 28)
If the Complainant has establishes a prima facie case, the burden of proof shifts to the Respondent to justify the adverse treatment based on bona fide occupational requirements (Code s. 13(4)). The Province of BC must show that it was unable to accommodate the complainant without incurring undue hardship. If the province meets this onus, then there is no discrimination.
[33] The duty to accommodate is a duty of reasonableness, with realistic limits. Like this case, OMalley was concerned with discrimination on the ground of religion or creed.
[34] This reasoning was applied in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (hereafter referred to as Meiorin) where the test for accommodation related to a given standard was determined to be:
a) rationally connected to the job;
b) adopted in good faith; and,
c) impossible to accommodate without the employer suffering undue hardship.
[35] I accept that the marriage of same sex couples is legally recognized and that same sex couples have a constitutional right to have their marriage solemnized in British Columbia.
[36] What remains for me to decide is whether or not the Respondent should be required to accommodate the religious beliefs held by the Complainant versus the legal right of Mr. Salsa and Mr. Chippes to have their marriage solemnized.V. ISSUES
[37] Is the requirement that the Complainant provide same sex marriage services prima facie discrimination against the Complainant based on her religion?
