We’re fast approaching that most wonderful time of the year, with cheers of joy and glowing hearts… for most. You see, the holiday spirit is not universally shared by all.

In this post we review a 2021 decision where the Ontario Human Rights Tribunal had to determine whether Christmas decorations on condo common elements were discriminatory.

Facts of this case: Santa Claus is coming to town

In December 2017, decorations were put up in the common areas of a Toronto condo building, including white lights on evergreen hedges outside the building and on an artificial plant in the common room and with red poinsettias in the lobby. The board of directors also sent around a solicitation for owners to contribute to a “Thank you fund” for staff “as the holiday season is fast approaching”. The invitation included images of candy canes and a mouse (or a teddy bear) in a Santa hat.

One of the owners took umbrage to that and argued that the trees, lights, poinsettias, candy canes and Santa hat were evocative of Christmas and that, as such, they were Christian religious symbols.

While this owner acknowledged that there were some acknowledgement of other religious holidays over the course of the year (including Chanukah, Eid-ul-Fitr, and Holi), she claimed that none were given the same prominence, with a Christmas notice being left up for 8 [of the 12] days of Christmas. As a non-Christian, she felt like a second-class citizen and brought an application to the Human Rights Tribunal, alleging discrimination on the basis of creed.

For those interested, the decision contains a long history of Christmas past, present and yet to come, showing how, in the eyes of this owner, this corporation went from being non-denominational with no Christmas trees or “Happy Holidays” signs in 1993 to the current situation with candy canes and a mouse (or teddy bear) in a Santa hat. This was not a St.Paul-on-his-way-to-Damas kind of conversion, but more like a slippery slope.

This owner objected to lights being placed on “Christmas trees” (the coniferous kind) or even on evergreen shrubbery but not if those same lights were placed on the bare branches of deciduous trees. The former being a Christian religious symbol but the latter simply brightening up the front of the building. She objected to red poinsettias but accepted the less “Christmassy” yellow ones. The “Christmas Holiday Fund” gathering donations for the staff was problematic, but the “Staff Thank You Fund” was acceptable.

The Legal Test: He is checking his list twice

The Human Rights Code provides that all are entitled to equal treatment and cannot be discriminated under a prohibited ground (such as creed). For there to be discrimination, one must demonstrate that they suffer a disadvantage or adverse impact. This decision provides a great analysis of all of the moving parts of a Human Rights claim, even though most cases referred to pertained to employment situations.

Decision: Secret Santa

In the case of the owner who stole Christmas, the Human Rights Tribunal cautioned that Christmas was now as much a secular holiday as it was religious. As such, decorations could be evocative of Christmas without being Christian religious symbols. So ultimately, the question would turn on whether any of the above displays of joy was festive or religious.

The Tribunal concluded that, absent “expert evidence” [I’m not making this up], it was not prepared to rule on whether lights, evergreen bushes, red poinsettias, candy canes and Santa hats (whether on mouse or bears) were, in fact, Christian religious symbols. Ironically, in the Jones case referred to in this decision, an employee had refused to display red poinsettias based on his religious belief not because they were Christian symbols but rather because they were too pagan and against his beliefs as a Jehovah’s Witness.

On the question of the prominence given to Christmas, this owner was of the view that the Corporation had to pick between acknowledging no religious holidays whatsoever, or providing equal recognition and inclusion to every religious holiday. [I’ve counted 56 holidays in November and December alone; 57 if you include Sol Invictus, the celebration of being unconquered by superstition and being consistent in the pursuit and sharing of knowledge – although it is unclear to me what greetings or symbols are traditionally exchanged between the proponents of this celebration. Presumably none.]

The owner also complained that a sign wishing all residents a “Happy Holiday weekend” assumed that everyone was, in fact, celebrating a religious event that weekend.

The Tribunal did not agree with either of these complaints. There was no evidence that a single request to acknowledge a different holiday had been rejected and, whether we like it or not, it was opened to anyone, regardless of creed, to enjoy (or not) the statutory holiday weekend in question.

How to stay on the “nice list”?

So where does that leave us?

The lobby and landscape around the building are common elements and are for all to enjoy. While there is nothing wrong with some decorations around the christmas holidays (I’ve remove the capital letters), a little restraint and inclusiveness may go a long way before you deck the halls.

There is likely nothing wrong with some festive lighting, poinsettias (I won’t discriminate on colour) and some tinsel. In some corporations, it may also be acceptable to put a full blown Christmas tree out.

Just don’t sour the eggnog. Be inclusive and respectful of others views and adapt to the situation in place at your condo. Consider also acknowledging other festive holidays/celebrations.

To the chagrin of my traditional heart, I would steer away from ostentatiously displaying baby Jesus, Mary, or the Three Wise men. Or the star of Bethlehem for that matter, unless it coincides with Halley’s Comet’s next passage.

So there you have it folks. Let there be peace on earth and joy to the world in this year’s celebration of the winter equinox.