The Ontario Human Rights Tribunal has denied a request for accommodation by a Rastafarian man who claims that female-only support workers were required by his creed. The decision, Lionel Barker v St. Elizabeth Health Care,1 provides meaningful guidance on the evidentiary requirements for a successful discrimination claim based on creed under the Ontario Human Rights Code (the “Code”).

Although creed is a ground protected by the Code, the Code does not expressly define what constitutes creed. Jurisprudence has often interpreted creed as referring to religious beliefs and practices. The Ontario Human Rights Commission has provided further guidance, suggesting that “creed may also include non-religious belief systems that, like religion, substantially influence a person’s identity, worldview and way of life. People who follow a creed, and people who do not, have the right to live in a society that respects pluralism and human rights and the right to follow different creeds.”2

In this case, the applicant, Mr. Lionel Barker, claimed that St. Elizabeth Health Care, an organization providing home health care services in Ontario, had failed to accommodate his needs when the organization sent male personal support workers to his home to bathe him. Mr. Barker, a devout Rastafarian, claimed that Rastafarianism strictly prohibits a man from bathing another man. To that end, Mr. Barker alleged that St. Elizabeth Health Care failed to accommodate his religious needs by refusing to assign only female personal support workers to bathe him.

Human Rights Tribunal: evidence insufficient to establish claim

It was undisputed that Rastafarianism is a creed within the meaning and protection of the Code, and that Mr. Barker was a devout Rastafarian for over 40 years. The issue before the tribunal was whether the prohibition against one man bathing another man, as asserted by Mr. Barker, was a legitimate creed-related belief requiring protection under the Code, and not a matter of personal preference.

In adjudicating Mr. Barker’s claim, the tribunal recognized that “courts need not accept that a practice is religious (as opposed to non-religions or secular) just because a claimant says so.” Instead, the tribunal stated,

in order to engage the protection of the Ontario Code against discrimination based on creed, an applicant must demonstrate that they sincerely believe that a certain practice or belief is experientially religious in nature in that it is either:

  1. objectively required by the religion, or
  2. that he or she subjectively believes that it is required by the religion, or
  3. that he or she sincerely believes that the practice engenders a personal, subjective connection to the divine or to the subject or object of his or her spiritual faith, and as long as that practice has a nexus with religion.

Taking the analysis one step further, the tribunal indicated,

[t]o establish whether a particular practice or belief has a “nexus with religion”, the Tribunal requires the applicant to introduce some evidence, beyond the applicant’s own say so or subjective belief, to prove a link or connection between the belief and the specific religion at issue.

In this case, the tribunal was looking for evidence of objective support for the prohibition against one man bathing another man in the Rastafarian creed from one or more of the following sources:

  1. Religious texts or documentation,
  2. Evidence of the underlying principles or tenets of the religion, and/or
  3. Expert evidence of elders or religious functionaries.

Mr. Barker did not provide any such evidence. Therefore, the tribunal concluded that the evidence was “insufficient to establish that [Mr. Barker’s] belief is objectively required by the Rastafarian religion or that [Mr. Barker’s] subjective belief is either rooted in the Rastafarian religion or has a nexus with the Rastafarian religion.”

Accordingly, the tribunal dismissed Mr. Barker’s application.

Takeaway for employers

Accommodation of religious and creed-based needs is, of course, protected by the Code. However, this case illustrates that the subjective belief by an individual (be it an employee or otherwise) that the individual requires accommodation on the basis of creed may not trigger a duty to accommodate, particularly where the individual is not able to demonstrate a connection between his or her subjective belief and the religion.

As is true of all requests for accommodation in an employment context, the employer and the employee (and, if applicable, the trade union) should communicate openly and work together to determine what, if any, accommodation is required. In some cases, this may require the involvement of third parties with expertise regarding the protected ground on which accommodation is being sought. For example, if accommodation is being sought be an employee on the basis of disability, the input of a licensed medical professional is often helpful. Likewise, if accommodation is being sought by an employee on the basis of creed, direction may be sought from a religious leader.