[1]               Tracey Smith and Deborah Chymyshyn (the “complainants”) filed a complaint alleging that the Knights of Columbus (the “Knights”), Elmer Lazar and Sandra Hauser (collectively the “respondents”) discriminated against them because of their sexual orientation contrary to s. 8 of the Human Rights Code.  In essence, the complaint arose after the complainants, who had rented a hall (the “Hall”) run by the Knights (a Catholic men’s organization) and owned by the Archdiocese of Vancouver (the “Archdiocese”), were denied access to it when the respondents learned that the purpose for which they had rented it was for the reception following their same-sex marriage. 

[2]               The respondents deny they have discriminated.  They say that they have a bona fide and reasonable justification for refusing complainants’ access to the Hall.  They say, that as practicing Catholics, they are opposed to same-sex marriages.  This opposition is part of their core religious beliefs, which are constitutionally protected under s. 2(a) of the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11) (the “Charter”).  They also say that their constitutionally protected right to freedom of religion protects property owned by the Catholic Church and the Archdiocese from being used for a purpose contrary to core Catholic beliefs, such as the celebration of a same-sex marriage.  In the alternative, the respondents rely on s. 41 of the Code, which allows them to give preference to those individuals who are members of their religious group. 

[3]               The complainants testified and they also called Jean McCann.  Ms. Hauser and Mr. Lazar testified.  Father Gabriel O’Donnell also testified for the respondents. 

[4]               We propose to first set out a general description of the Hall, the Knights and their activities.  After those descriptions, we set out the chronology of events giving rise to this complaint.  Much of the evidence was undisputed.  Where disputes arise, and where they may be relevant to the issues to be determined, the Panel will deal with those disputes in the chronology. 

[5]               The Hall is situated on a parcel of land owned by the Archdiocese and the Hall is operated by the Knights.  On the same parcel of land, and to the right of the Hall, is Our Lady of Assumption Catholic Church (the “Parish Church”).  Behind the Hall, and to its left, are a Catholic School and its portables.  There is a fence in the parking area between the Hall and School.  The Hall and the Parish Church are separate buildings.

[6]               Mr. Lazar, the Grand Knight of Council 9125 of the Order of the Knights of Columbus, testified that the Knights are responsible for operating and maintaining the Hall, except for major projects, which are paid for by the Parish Church.  He said it is the Parish priest who has the final say about what activities will take place in the Hall.  He explained that the Hall used to be a church.  It was his understanding that when there is a change in use of a church, the building is declared a secular space.  

[7]               Ms. Hauser, the wife of David Hauser, a Knight, said that the Hall is rented for events such as birthdays, anniversaries, AA meetings, and a Saturday mother and tot program.  Some of these activities occur on a regular basis and some are one-time events.  Ms. Hauser said that the Parish Church groups always have priority in renting the Hall, although the Hall is rented to non-Catholics and people who are not members of the Knights.  If a Parish Church group wants to use the Hall, at the same time at which it has been rented to others, the rental group will be moved into another area, such as a school portable.  Ms. Hauser did not know if there was an agreement between the Knights and the Archdiocese regarding the running of the Hall.  Mr. Lazar confirmed what Ms. Hauser said about how the Hall is rented and to whom.

[8]               Father O’Donnell is the Director of Catholic Information for the Knights, which is based in New Haven, Connecticut.  He gave evidence about the history of the Knights, their purpose, their charitable works, and the membership. 

[9]               Father Michael McGivney, of New Haven, Connecticut, founded the Knights in 1882.  The Knights are an international society made up of over 1.6 million members, all of whom are Catholic men.  The families of these men also participate in the Knights’ activities of the Knights, but are not members.  Although not specifically stated, the family is viewed, by the Knights, as being a man and a woman as married partners raising their children and participating in the Catholic community.  The Knights are governed by a Supreme Council with a constitution, laws and rules.  There are nearly 12,000 subordinate councils.  The Knights are organized into four “degrees”; the first three degrees reflect the principles of charity, unity and fraternity, while the fourth degree incorporates the principle of patriotism.

[10]           There are three requirements to becoming a Knight: one must be a male, a practicing Catholic, and over the age of 18.  When a man becomes a Knight, he is given certain materials, including a book called These Men They Call Knights, setting out the philosophy and requirements of being a Knight.  The book sets out the services and benefits available to Knights, the commitment of the Knights to the Catholic Church and its teachings, and the various activities undertaken to support this commitment. 

[11]           The dual purposes of the Knights are to provide mutual material support to Catholic men and their families and to promote the teachings of the Catholic Church.  The Knights are very active in recruiting and supporting those called to religious life in the Catholic faith.  The Knights are also engaged in numerous charitable works and do not limit those charitable works to the needs of the Catholic community. 

[12]           Father O’Donnell said that neither the Catholic Church, nor the Knights, condemn homosexuals, only the homosexual act.  Homosexuals can be members of the Catholic Church and the Knights; however, same-sex unions are contrary to core Catholic beliefs.  Father O’Donnell said that marriage is defined, in the Judeo-Christian tradition, as being an exclusive, lifetime union between a man and a woman.  Father O’Donnell said that those who disagree with this view have moved away from the “traditional” definition of marriage.  The Catholic Church sees this union as having its foundation in nature, established by God, which has been raised to a sacrament, which was described by Father O’Donnell as the outward or visible sign of an invisible or hidden reality: love of God or grace or divine influence. 

[13]           Father O’Donnell said that, if the Knights had allowed the Hall to be used by the complainants for the celebration of their marriage, it would have resulted in a serious rupture between the Catholic Church and the Knights.  In the Charter, Constitution and Laws of the Knights, a Knight forfeits his membership if he does not remain in union with the “Holy See”.  In Father O’Donnell’s view, renting the Hall for the celebration of a same-sex marriage would have diminished the meaning of marriage within the Catholic Church. 

[14]           Father O’Donnell said the Catholic Church does not distinguish between the performance of the marriage ceremony or rite, the celebration of the marriage at a reception, or celebrating the anniversary of a marriage, as these events are, in effect, all celebrations of a marriage. 

[15]           Ms. Smith and Ms. Chymyshyn live in Coquitlam and had been in a committed relationship for five years before they decided to marry.  They decided to marry after same-sex marriage became legal in British Columbia, in order to take their commitment to a deeper level. 

[16]           They arranged to marry in an outdoor, candlelit ceremony at Buntzen Lake Park, which they booked for November 1, 2003.  The wedding was to take place at six o’clock, with an informal, party-like reception to follow.  The reception was originally to be in the complainants’ home but, as the number of guests grew, they decided to look for a hall or a banquet room to rent.  The venue had to be close to Buntzen Lake and not too expensive.  

[17]           Ms. Chymyshyn said they had difficulty finding a place that met their needs.  She said that one day, while driving around the neighbourhood, she drove past the Hall and saw a sign on the door saying that the Hall was for rent.  The sign provided a contact number.  The number belonged to Ms. Hauser, who is a member of the Parish Church.  Mr. Hauser was, at that time, the manager of the Hall. 

[18]           While looking at the Hall, Ms. Chymyshyn took some pictures so she would have them to show Ms. Smith.  The pictures showed the Hall, the rental sign and the parking area with the chain-link fence separating the School and the Hall.  Ms. Chymyshyn recalled seeing the school, but not the Parish Church.  She said that she noticed a building but did not note that it was a church. 

[19]           While sitting in front of the Hall, Ms. Chymyshyn called the number listed on the sign and spoke to Ms. Hauser.  Ms. Hauser was not available to meet that day so they arranged to meet the following week.  Ms. Chymyshyn said she was very excited about the possibility of renting the Hall and discussed it with Ms. Smith that evening. 

[20]           The complainants met with Ms. Hauser on September 3, 2003.  At that time, Ms. Smith said she noticed that there was a chain-link fence between the Hall and the School, but did not realize the buildings were on the same property.  At the hearing, the complainants described the inside of the Hall, including where everything was located, the size of the areas and the other amenities.  They looked at the various rooms and, in particular, the kitchen, because they intended to serve food, and the washroom facilities. 

[21]           Ms. Hauser said that the complainants looked around the entire Hall and would have seen everything, including the cross at one end of the Hall, which has always been there.  Ms. Hauser said that there is a Knights’ symbol close to where the CD player is located.  There are a series of photos, including pictures of the Pope and two priests, on the wall.  The complainants said they did not really notice any of the pictures, the cross or the Knights symbol, although Ms. Chymyshyn said they looked thoroughly around the Hall.  Given that the complainants were looking at the Hall with regard to its suitability for their wedding reception, the Panel accepts that their focus was on the size of the rooms, the amenities, and the overall suitability of the Hall, and that they did not take particular notice of the pictures, the cross, or the Knights symbol. 

[22]           Ms. Chymyshyn said that Ms. Hauser was very nice and friendly and answered all of their questions.  Although the complainants had some reservations about the Hall, after speaking privately, they decided to rent it.  They signed a contract, dated September 3, 2003 and gave Ms. Hauser two post-dated cheques for November 1, 2003.  Ms. Hauser explained that the Knights donated the money received from the rental of the Hall to charity; the complainants thought this was a great idea.  Ms. Hauser said she assumed that the complainants knew who the Knights were.  There is no mention of the Parish Church or the Archdiocese in the contract.

[23]           After the agreement was signed and the cheques provided, Ms. Hauser told Ms. Chymyshyn that she would contact her closer to November 1 to provide her with the keys, which she normally gives to renters a couple of days in advance of an event.  They were together for about 20 to 25 minutes.

[24]           There was some dispute in the evidence about what the complainants said the Hall would be used for.  The complainants said they told Ms. Hauser it was for a wedding reception when they signed the contract, but Ms. Hauser said she believed it was for a wedding.  Ms. Hauser said that Ms. Chymyshyn, who did most of the talking, discussed her wedding and referred to “our” wedding.  Ms. Hauser assumed that Ms. Smith was Ms. Chymyshyn’s friend and was there to help her out.  The contract said that the Hall would be used for a “wedding”.  Ms. Chymyshyn said she told Ms. Hauser it was not for a wedding but a reception; evidence confirmed by Ms. Smith; although Ms. Smith did confirm in cross-examination that Ms. Hauser thought it was a wedding.  Ms. Chymyshyn said Ms. Hauser responded by saying that she did not need to change the contract as it just provided some idea of the nature of the function. 

[25]           Ms. Hauser had a different recollection of what happened.  She said that there was no discussion between the parties that the Hall was to be used for a reception, as opposed to the actual wedding ceremony.  She said that Ms. Chymyshyn never said that it was a “reception” or that the wording on the agreement should be changed.  However, she did agree that it was possible that the complainants referred to the event as a “reception”.

[26]           In the Panel’s view, nothing turns on this inconsistency in the parties’ recollection of what was said or in what the parties understood.  The complainants wanted the Hall for a wedding reception.  Ms. Hauser said she did not know that Ms. Smith and Ms. Chymyshyn were a lesbian couple.  All parties proceeded amicably to agree to the terms of the rental arrangement.  Further, in their evidence, the respondents’ position was that the nature of the function was not determinative: they make no distinction between a same-sex wedding and a same-sex wedding reception and they would not have rented the Hall to the complainants for either.  However, the Panel accepts that this misunderstanding of the nature of the function for which they rented the Hall, may have affected how the Knights responded when they learned of the nature of the event. 

[27]           After leaving the Hall on September 3, 2003, the complainants continued with their wedding plans.  They finalized their invitations, adding the address of the Hall as the location for the reception, and mailed them to their guests on the weekend of September 21, 2003. 

[28]           On Thursday, September 25, 2003, Mr. Hauser received a call from Mr. Pat O’Neil, a Knight employed by the Archdiocese.  Mr. O’Neil advised Mr. Hauser that he had heard that the Hall had been rented for a same-sex wedding from someone who was involved in the wedding, although that person was not identified.  Ms. Hauser said both she and her husband were shocked at the news. Mr. O’Neil said that the wedding could not happen.  Mr. Hauser then called Mr. Lazar who confirmed that the complainants could not have access to the Hall and they would have to be told.  He said that the Archdiocese would be upset since everyone knows that the Catholic Church is against same-sex marriages and the Knights could not condone such an event.  Although, at the time, Mr. Lazar thought the event was a same-sex wedding, he said it would not have made a difference to him if he had known it was reception or an anniversary celebrating a same-sex marriage, as his position on the rental would have been the same.  Mr. Lazar told Mr. Hauser to return the cheques to the complainants with the Knights’ apology.  Mr. Hauser did not want to deal with it, but given that Ms. Hauser had rented the Hall, she agreed to call Ms. Chymyshyn, which she did that evening. 

[29]           Ms. Smith took Ms. Hauser’s call.  Ms. Hauser told her that the Knights had found out that the Hall was to be used for a same-sex wedding and they could not allow the Hall to be used for that purpose.  Ms. Smith said she told Ms. Hauser it was not for a wedding but a reception, but Ms. Hauser said they still could not let them have access to the Hall, because the Catholic Church is against same-sex weddings.  They discussed the cheques and Ms. Hauser said she would return them in the mail.  Ms. Smith testified that Ms. Hauser was very polite and apologetic during this conversation. 

[30]           Ms. Smith told Ms. Chymyshyn about the conversation with Ms. Hauser.  Ms. Chymyshyn was shocked and upset by the news.  She called a friend, who told her that the respondents could not do this, and the friend agreed to call Ms. Hauser.  Ms. Hauser said she received this call and was told that the complainants were very upset.  Ms. Hauser said she advised the friend that she had to do what she was told by the Grand Knight and that she was sorry.  The friend asked if the complainants would be reimbursed for the costs of their invitations and postage.  Ms. Hauser said that it was not her decision, but she would raise it with the Grand Knight. 

[31]           Ms. Smith was very angry at the turn of events.  After the discussion, Ms. Chymyshyn typed a letter setting out the situation, with input from Ms. Smith and a friend who was with them at the time.  They then sent the letter to the media. 

[32]           The next day, Ms. Chymyshyn spoke to Ms. McCann, a co-worker, about what had happened.  Ms. McCann, after calling her son, who is a lawyer, asked Ms. Chymyshyn if she knew who the Knights were.  Ms. Chymyshyn said she did not.  Ms. McCann said she should look them up on the Internet, which she did.  Ms. Chymyshyn said she was surprised to find out that the Knights were the world’s largest Catholic men’s organization.  In her evidence, Ms. McCann confirmed Ms. Chymyshyn’s reaction.  Ms. Chymyshyn called Ms. Smith, who was also surprised at the news.  Both complainants said that, had they known who the Knights were, they would not have rented the Hall because they knew the Catholic Church’s view on same-sex marriage.  They would not have wanted the hassle it could create.  Ms. Smith also said that she respects the choices of others and their beliefs. 

[33]           The complainants took steps to find another hall to rent, which they did through the City of Coquitlam (the “City”) on September 26.  They called all their guests, advising them that the location of the reception had been changed and that all guests would be given the address and directions to the new location of the reception after the wedding ceremony at Buntzen Lake.  Ms. Chymyshyn said that they were worried that someone from the Knights, or the press, would attend, and possibly disrupt, their wedding so they did not disclose the new location of the reception in advance.  The Panel accepts that the Knights never intended to disrupt the complainants’ wedding. 

[34]           The same day, Ms. Hauser returned the cheques in the mail to Ms. Chymyshyn.  No letter of apology, regret or explanation was enclosed.  Ms. Hauser said she received a call from her sister-in-law, who works for the City, who told her that Ms. Smith had contacted the City about the rental issue.  Her sister-in-law suggested that Ms. Hauser take the rental sign down from the door of the Hall before the media arrived.  Mr. Hauser went to the Hall and did so.  Ms. Hauser said she did not want her home phone number to be available.

[35]           On September 27, 2003, the NOW newspaper, a paper that circulates in the Coquitlam area, published an article about the issues raised in this complaint. 

[36]           On October 3, 2003, Ms. Chymyshyn wrote a letter to the Knights requesting compensation totalling $594.59, representing the costs of the wedding invitations and postage and the cost of renting another hall.  After receiving the letter, Mr. Lazar spoke to a number of people about the issue, including legal counsel for the Knights, before contacting Ms. Chymyshyn.  He said he was advised to pay the amount being asked and to obtain a standard form release.

[37]           Mr. Lazar called Ms. Chymyshyn.  Ms. Chymyshyn described Mr. Lazar as being “rather aggressive”, and she became upset.  Mr. Lazar said that the Knights were prepared to pay the amount they had requested, but the complainants would have to sign a release first; he refused to send the release in the mail.  Ms. Smith then took the phone, and spoke with Mr. Lazar, and they agreed to meet.  Mr. Lazar confirmed that he talked to Ms. Chymyshyn a couple of times, but she would pass the phone to Ms. Smith to finish the conversation; he did not understand that Ms. Chymyshyn was upset, frightened or intimidated by him. 

[38]           Ms. Smith said that when she told Mr. Lazar that they wanted the release looked at by a lawyer, he became “forceful”; in his view, this was not necessary.   He said the Knights would not pay for any legal costs.

[39]           Although there was a dispute in the evidence regarding where Mr. Lazar said he would meet the complainants, it is not necessary for us to resolve this dispute in order to determine the issues in this case.  In her evidence, Ms. Chymyshyn agreed that Mr. Lazar wanted to resolve the issues between the parties privately, as did she. 

[40]           Ms. Smith met with Mr. Lazar.  Mr. Lazar said that Ms. Smith seemed confused by the release, which he described as being a standard release.  Mr. Lazar did say that he had to explain the release to Ms. Smith a couple of times.  Mr. Lazar stated that he told Ms. Smith to review the release and that they would leave the issue until after the wedding.  Ms. Smith said she did not find the meeting intimidating.  She described Mr. Lazar as friendly and different in person from when he was on the telephone.  After the meeting, Mr. Lazar called the complainants between four and five times in order to get the signed release.  Ms. Smith said she finally told him to stop calling; she felt they were being harassed. 

[41]           Mr. Lazar said that he felt that there was a misunderstanding on everyone’s part, and that the Knights tried to rectify the situation by reimbursing the complainants their out-of-pocket expenses.  He believed that the complainants should have known about the Knights and that the Hall was a Catholic facility, especially given the pictures and the cross on the wall inside the Hall.  He did say, however, that he believed that the complainants rented the Hall because it was small, inexpensive and convenient. 

[42]           Ms. Chymyshyn did not understand how the respondents found out they were renting the Hall for a same-sex wedding.  They had assumed that their wedding guests were all people who supported their intention to marry.  They reviewed their list of guests to see who may have said something that led the Knights to cancel the rental.  She described being very upset and frustrated; she did not know who to trust or believe.  She felt that the Knights had treated her and Ms. Smith wrongly and that their comments were offensive.

[43]           Ms. Smith said they experienced a lot of extra stress as a result of the cancellation.  It was hard for her to go to work, as Mr. Hauser worked for the same employer.  Mr. Hauser talked to her about the issues raised in the complaint, which she wanted to avoid.  Ms. Smith agreed that she filed this complaint to stand up for her deeply held beliefs that she should not be discriminated against.  She acknowledged that the Knights would have the same right to stand up for their beliefs. 

[44]           There is currently no rental sign on the door of the Hall; rental information is currently published only in the Parish bulletin.

[45]           Section 8 of the Code provides in part:

[46]           A prima facie case of discrimination is one which covers the allegations made, and which, if believed, is sufficient to justify a finding in favour of the complainant, absent an answer from the respondent: Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Limited, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (“O’Malley”) at p. 558.  Once a prima facie case of discrimination has been established, the onus shifts to the respondent to prove that the discriminatory conduct is bona fide and reasonably justified. 

[47]           In this case, the respondents conceded that they denied the complainants a service customarily available to the public.  In making this concession, the respondents accepted that the Hall was available to the “public”.  They also admit that the denial was based on a prohibited ground of discrimination, sexual orientation.  However, in making this concession, the respondents say that the

[48]           The respondents also conceded that the complainants had established a prima facie case of discrimination under the analysis in Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497.  One of the elements that must be established under the Law analysis is that complainants must show that they have suffered injury to their human dignity, viewed both subjectively and objectively.  In this case, the Panel finds that such evidence was provided and the elements of the Law analysis were established.

[49]           All three respondents conceded that the complainants had established a prima facie case of discrimination.  Despite this concession, the Panel is still required to consider whether a prima facie case of discrimination has been established against each respondent before moving to consider the respondents’ justification for their actions. 

[50]           On a review of the evidence, the Panel is of the view that the complaint against Ms. Hauser should be dismissed.  It is clear from the evidence that she acted on the direction of Mr. Lazar and the Knights.  It was Mr. Lazar, on behalf of the Knights, who made the decisions regarding the denial of the use of the Hall by the complainants.  Ms. Hauser is not a member of the Knights and, in her personal capacity, did not have the ability to make the decisions giving rise to the issues in this complaint, nor was she personally denying the service.  Although she communicated the decision of the Knights to the complainants, the Panel finds that this communication, in the circumstances of this case, does not lead to a finding that Ms. Hauser contravened the Code.  

[51]           The Panel comes to a different conclusion with respect to Mr. Lazar.  Mr. Lazar was the Grand Knight of Council 9125, the body having authority over the Hall.  The evidence is clear that it was his decision, made on behalf of the Knights, that the complainants would be denied access to the Hall.  The Panel finds that, in making this decision, Mr. Lazar was acting within his scope of authority, a fact not disputed at the hearing.  Therefore, the issue of whether Mr. Lazar was justified in taking the steps he did will be dealt with in conjunction with analysis of the Knights’ justification for their actions. 

[52]           In this section, Mr. Lazar and the Knights will collectively be referred to as the “Knights”.  The Knights argued that they had a bona fide and reasonable justification for cancelling the complainants’ rental of the Hall.  Alternatively, they say that they are entitled to the protection of s. 41 of the Code against the claim of discrimination. 

[53]           The parties agree that the three-part test set out in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) and applied in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 (“Grismer”) applies in this case.  In doing so, the parties agreed that the Knights must establish the following:

[54]           The first issue we must address is the standard the Knights adopted.

[55]           The Knights say that the standard they adopted is that they do not rent the Hall for purposes that are contrary to their core Catholic beliefs.  In this case, that core religious belief is that the Catholic Church does not promote, solemnize or celebrate same-sex marriages.  The Knights are required to be in conformity with this core religious belief.  Therefore, the Knights are precluded from renting the Hall for such purposes.

[56]           The Knights had no written policy or standard in place stating that the Hall was not to be rented for purposes contrary to their core Catholic beliefs and, in this case, not for a same-sex marriage or reception.  In their view, it was part of the “shared understanding” that the proper use of the Hall would not include being used for a same-sex marriage, because of both the Catholic Church’s well-known position against same-sex marriage and the fact that the Hall was owned by the Archdiocese. 

[57]           In the Panel’s view, the fact that the Knights did not articulate a standard earlier, does not foreclose them from articulating and relying on the standard now put forward, in the context of this case: Wabush Mines v. Power (1997), 1997 CanLII 14710 (NL CA), 30 C.H.R.R. D/87 (Nfld. C.A.) at paras. 69-70; Vancouver Rape Relief v. Nixon, 2002 BCHRT 1 at para. 184 (rev’d. on other grounds, Nixon v. Vancouver Rape Relief Society (2003), 2003 BCSC 1936 (CanLII), 22 B.C.L.R. (4^th) 254 (B.C.S.C.)).  It is not unusual for a standard not to be articulated until the issue presents itself. 

[58]           The Panel accepts the standard as outlined by the Knights.

[59]           The analysis of the first part of the Meiorin analysis involves several questions.  First, what was the purpose or goal of the standard at issue?  Second, what is the ‘function’ being performed.  Third, is the purpose rationally connected to the function?  We will consider each of these issues, although parts of the analysis are intertwined. 

[60]           With respect to purpose, the Knights say that there are at least two purposes for the standard: the first is to maintain their relationship with the Catholic Church and not to undermine its missions; the second is to act in accordance with their own core Catholic religious beliefs. 

[61]           The Knights argue that they are entitled to maintain the religious nature of an institution, namely the Hall, and that this is a legitimate purpose.  In making this argument, they refer to the Supreme Court of Canada’s decision in Caldwell v. Stuart, 1984 CanLII 128 (SCC), [1984] 2 S.C.R. 603.  There, Ms. Caldwell was dismissed as a teacher in a Roman Catholic high school because she had married a non-Catholic, divorced man, in a civil ceremony.  The school took the position that Ms. Caldwell’s actions contravened two rules of the Catholic Church namely, that a Catholic must be married in the Catholic Church and must not marry a divorced person.  The Court upheld the dismissal and said:

[62]           The reasoning of the Supreme Court of Canada in Caldwell has been followed in other cases: Garrod v. Rhema Christian School (1991), 1991 CanLII 13172 (ON HRT), 15 C.H.R.R. D/477 (Ont. Bd. Inq.) and Kearly v. Pentecostal Assemblies Board of Education (1993), 1993 CanLII 16488 (NL HRC), 19 C.H.R.R. D/473 (Nfld. Bd. Inq). 

[63]           The Panel does not find these decisions determinative of the issues in this case.  It is clear from these decisions, and others, that context is important.  In these decisions, teachers, who were teaching in a religious institution, acted outside the beliefs that they were meant to exemplify.  The Courts found that expecting compliance with religious teaching, by way of action, was a legitimate bona fide occupational requirement for persons in the role of a teacher.  The relationship between the students, the teachers and the religious beliefs was integral to the decisions in these cases.  By contrast, in this case, the Hall is rented for many activities that could not be said to reflect the core religious beliefs of the Catholic Church. 

[64]           In Schroen v. Steinbach Bible College, [1999] M.H.R.B.A.D. No. 2 (QL) (Man. Bd. Adj.), Steinbach Bible College, a Mennonite school, refused to employ Ms. Schroen, a Mormon, as an accounting clerk.  The Board reviewed the context in which the issues arose.  In its view, given the nature of the institution and the “unique role of an accounting clerk” within the institution, it was reasonable for the College to require conformance with its philosophy, missions, faith and beliefs.  Again, the facts giving rise to the decision in Schroen are different from those in this case, and the nature of the institution is very different. 

[65]           The Panel accepts that the Knights are closely associated with the Catholic Church and support its activities and beliefs.  This conclusion is amply demonstrated by the oral and documentary evidence tendered during the hearing, and was not disputed by the complainants.  The Knights’ membership is restricted to Catholic men over the age of 18. 

[66]           Based both on the evidence and, as a matter of general knowledge, it is clear that one of the core religious beliefs of the Catholic Church is that marriage is a union between a man and a woman, to the exclusion of all others.  The Catholic Church’s opposition to same-sex marriage and the solemnization of a same-sex union is well known.  This core religious belief is sincerely held.

[67]           In this case, however, the event in question was not the solemnization of a same-sex marriage but access to a Hall, after a contract had been signed, for a reception following a same-sex marriage.  The Knights submit that this does not matter because, given the core religious beliefs of the Catholic Church, and the Knights’ relationship to the Catholic Church, had they participated in any way in the celebration of the complainants’ marriage, it would have undermined the mission of the Catholic Church, which includes advocating against same-sex marriages. 

[68]           At this juncture, it is appropriate to consider the function of the Hall, as it is that function that provides the context for determining if restricting access to the Hall, in the manner that occurred in this case, was for a purpose or goal related to the Knights’ core religious beliefs.  

[69]           There is no dispute between the parties that the complainants wanted to rent the Hall for a reception following their same-sex marriage.  There is also no dispute that the Knights do not distinguish between the rite of celebration of a same-sex marriage and the reception following it.  However, there is a difference in how the parties described the function being performed by the Knights in this case. 

[70]           The Knights say that the function is to provide the Hall to groups, and for activities, that are approved of by the Archdiocese, that conform to the missions of the Catholic Church, and that maintain the relationship between the Knights and the Catholic Church.  The complainants say that the function is simply the rental of the Hall to those who see the sign and are able to pay the requested fee. 

[71]           The evidence disclosed that the Archdiocese owns the Hall and the Knights operate it on its behalf.  These facts alone do not protect it from scrutiny.  If that were the case, any property owned by a religious organization, wherever situated and regardless of its use, could be cloaked with religious significance.  This simply cannot be the case.  A religious organization may own property, which it rents but, which has no relationship, other than ownership, with the religious organization.  Further, and in this case, the Hall was used for events that could not, in any way, be considered religious.

[72]           The Hall is situated in close proximity to the Parish Church and the Catholic school.  This fact alone does not protect it from scrutiny.

[73]           The Knights argued that the Hall was used for events that were approved by the Knights and the Archdiocese.  However, the evidence does not support this assertion.  The Hall was available for rent and advertised as such to the general public.  There was nothing in the notice posted on the door that suggested that the Hall would be rented for only those activities approved of by the Catholic Church or that the rental was restricted in any way.  Nor did Ms. Hauser raise this when Ms. Chymyshyn inquired about renting it.  In fact, the Knights conceded that the rental of the Hall was a service available to the “public”; not only to that portion of the public which shared their views and religious beliefs.  

[74]           Further, the process for renting the Hall was simple, and did not include any apparent screening process.  A person would call the phone number on a sign attached to the door of the Hall.  He or she would view the Hall, as was the case here, and if the Hall was acceptable for the purpose intended, and available, he or she would enter into a contract to rent the Hall and pay the required fee.  The renter had to identify the event that was to take place, but there was nothing to suggest that the event had to be a religious event.  For example, there is nothing to suggest that, had one of the complainants wanted to rent the Hall to celebrate a heterosexual marriage, approval would have been required by the Archdiocese.  Furthermore, there was nothing to suggest that even if it was a heterosexual marriage of non-Catholics or a man and woman who had been cohabitating, for example, approval would have been necessary.  Ms. Hauser was clear that, had nothing else transpired, she would have met with the complainants a few days before the event and given them the keys to the Hall. 

[75]           Similarly, the conditions of rental set out in the Knights’ rental agreement say nothing about an approval process.  The conditions set out a number of requirements for renting the Hall that could be described as falling into the category of general maintenance and liability issues.  The only provision suggesting that there were restrictions on the rental of the Hall was the statement that “[t]he premises shall not be used for any illegal activity”.  Given that the laws of British Columbia allow for same-sex marriages, it cannot be said that the complainants intended to engage in any illegal activity that would bring this section into play. 

[76]           The Knights described the organizations that rent the Hall.  They include Parish groups and the Knights.  The Knights argued that the “only” non-Catholic groups that used the Hall were Alcoholics Anonymous, Narcotics Anonymous, and a mother and tot dance group.  However, Ms. Hauser said that events such as birthdays and anniversaries are also held in the Hall.  There was no evidence to suggest that only Catholics rent the Hall for these purposes, or that there is any screening to ensure that same-sex couples, who are married, cannot attend these events. 

[77]           It was clear that not all the groups who rent the Hall fall into the category of those persons with core religious beliefs that are consistent with the Catholic Church.  Generally, it appears that the Hall is rented to non-profit types of organizations or gatherings.  However, there was no evidence to support the Knights’ assertion that the groups using the Hall must be groups that “advance or are wholly consistent with the cardinal and theological virtues of the Catholic Church”. 

[78]           The Panel is not persuaded, by the Knights argument, that the Hall was exclusively a place where Catholics put their faith into practice.  It was much more than that.  While many groups and individuals would have used the Hall for those types of functions and purposes, they were not the only types of events that took place in the Hall.  The evidence established that the Hall was available to rent to members in the larger non-Catholic community.  Further, the sign advertising the Hall for rent did not include such a requirement. 

[79]           The Knights argued that the “true nature of the Knights’ undertaking is the management of a religious space for a private institution that openly serves only a segment of society” and that there are other spaces available for the complainants to celebrate their same-sex marriage.  The Panel is not persuaded that the Hall is solely a religious space; it was available to the public for rental for a variety of non-religious events.

[80]           The Panel accepts that when the Hall was rented to a non-Parish group, and the members of the Parish needed the Hall at the same time, the non-Parish group would be moved.  However, the evidence was that those groups would be offered alternate space within the Parish Church or the School.  It was not suggested that those groups would be scrutinized to ensure that their activity was in accordance with the missions or values of the Catholic Church. 

[81]           The Knights argued that the complainants knew, or ought to have known, that the Hall was a hall used for Catholic functions.  They say this for two reasons: first, the Knights, and their connection to the Catholic Church, is well known; second, that the Hall contained a number of religious items that would have indicated its religious nature. 

[82]           The Panel accepts that the complainants did not know who the Knights were or their affiliation with the Catholic Church.  Their surprise, and perhaps shock, on learning who the Knights were was not seriously challenged and was supported by the evidence of Ms. McCann.  Further, Ms. Smith testified that, had the complainants known who the Knights were, they would not have rented the Hall given the Catholic Church’s views on same-sex marriage. 

[83]           Both parties spent considerable time describing the Hall and the placement within it of the crucifix, a picture of the ascension of the Virgin Mary, a picture of the Pope and pictures of the leaders of the Knights.  There is no question that these items were displayed in the Hall.  However, the Panel accepts the evidence of the complainants that they did not take notice of these items.  In our view, it is in accordance with the preponderance of probabilities (see Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at p. 357) that, in light of the purpose for which the complainants wanted to rent the Hall, their focus was on the kitchen facilities, the tables and chairs, the washrooms, and the general layout of the space, rather than what was hanging on the walls.  Even if the complainants had noticed those items, the Panel is not persuaded that they would have made the connection between them, the Knights, and the fact that the Hall was a building with religious significance that may have had restrictions as to the types of events that could take place there. 

[84]           The income raised from the rental of the Hall is used for charitable purposes and is given to the Parish Church.  However, this alone does not change the character of the Hall or its function, or make it a religious place.

[85]           Given this evidence, the Panel is not persuaded that the function being performed in the rental of the Hall was strictly related to activities approved of by the Catholic Church and/or for activities that supported its missions.  In the Panel’s view, it is more appropriate to describe the function in a way that suggests that the Hall cannot be rented or used for an activity that is antithetical to the Catholic Church’s missions.  In other words, the function was not only to rent the Hall, but that any group renting or using the Hall could not engage in activities that could cause the Knights difficulties with the Catholic Church or be in conflict with their own core religious beliefs.  

[86]           The Knights said that had they granted the complainants access to Hall this would have caused a breach with the Catholic Church.  The Panel accepts that the rental may have caused the Knights difficulty.  However, it is not the consequence that the Panel must consider; it is the relationship and the Knights’ view of that relationship and how their core religious beliefs inform the function.  In this respect, the function is not separate from the core religious belief. 

[87]           The Panel accepts that it is possible that, if other individuals or groups within the Catholic community knew of the same-sex celebration that was to take place in the Hall, they may have seen the Knights, and this particular Parish Church, as providing, at least tacitly, support for an event that the Catholic Church opposes.  In this respect, allowing access to the Hall for the same-sex marriage celebration could serve to undermine the Knights’ relationship with the Catholic Church. 

[88]           Looked at in this way, the Panel accepts that the function not only includes the simple dimension of renting the Hall, but that the Hall could only be rented and/or used for events that would not undermine the Knights’ relationship with the Catholic Church.

[89]           For these reasons, the standard, given its purpose, is rationally connected to the function, and we find that the Knights have established the first element of the test in the circumstances of this case. 

[90]           The Panel has no difficulty finding that the Knights adopted the standard honestly and in good faith. 

[91]           The Knights argued that they could not accommodate the complainants because to be required to act contrary to their core religious beliefs would cause them undue hardship. 

[92]           Before applying this part of the test to the facts of this case, it is appropriate to review the law related to the intersection and balancing of the constitutionally protected right of freedom of religion and other constitutionally protected rights, including the equality provisions set out in s. 15 of the Charter.  Cases involving such a balance are inherently challenging and context specific.  A review of this law will assist in addressing the competing interests at stake in this case and the issue of whether the Knights could have accommodated the complainants to the point of undue hardship.  

[93]           The law is clear that everyone is entitled to hold and manifest their own sincerely held religious beliefs and to declare those beliefs.  The Supreme Court of Canada has consistently maintained this constitutionally protected right.  However, it is also clear that the right is not absolute.  The following is a brief summary of some of the cases that have considered this issue. 

[94]           In R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, the Supreme Court of Canada was asked to determine if the Lord’s Day Act, R.S.C. 1970, c. L-13, and particularly s. 4 of that Act, was unconstitutional because it infringed the right to freedom of conscience and religion.  In finding the section unconstitutional, the Court said that:

[95]           In Ross v. School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825, the issue was whether when a School Board failed to take action against Mr. Ross, a school teacher who made anti-Semitic remarks in his off-duty time, it violated s. 5 of the New Brunswick Human Rights Act.  The Board of Inquiry found that the School District had violated s. 5 of the Act.  The Supreme Court considered the constitutionality of the Board’s decision in light of Mr. Ross’s constitutionally protected right to freedom of expression and religion.  In considering Mr. Ross’s religious freedoms, the Court said that, if a religious belief is sincere, it is not open to the Court to question that belief.  However, the Court held that one’s religious freedom is not unlimited; it is restricted by the rights of others to hold and manifest their beliefs and to be free from injury from the exercise of the freedom of religion of others.  Thus, freedom of religion is subject to the fundamental rights and freedoms of others.  The Court went on to hold that freedom of religion cannot be used as an instrument to roll back the advances made by other groups, in this case Jewish persons, against discrimination.  Again, the Court found that the further the act is from the core value of a religious belief, the lower the standard of justification that will be applied under s. 1 of the Charter.  In all cases, there must be a balancing of the competing rights at issue.  This must be done in context. 

[96]           In Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 722, the Court was asked to review the decision of the British Columbia College of Teachers (“BCCT”), which had denied Trinity Western University (“TWU”) the right to assume full responsibility for its teacher education program.  The issue arose because TWU required its faculty and students to abide by certain standards, one of which required them to refrain from engaging in certain sexual sins, including homosexual activities.  BCCT’s position was that, because of this requirement, the teacher education program appeared to follow discriminatory practices.  The Court concluded that there was no foundation to BCCT’s concerns, as there was no evidence that the graduates of the program acted in a discriminatory manner when teaching.  The Court, in considering the competing interests of the parties, said that “the proper place to draw the line in cases like the one at bar is generally between belief and conduct.  The freedom to hold beliefs is broader than the freedom to act on them.” (paras. 36-37). 

[97]           In Chamberlain v. Surrey School District No. 36, 2002 SCC 86 (CanLII), [2002] 4 S.C.R. 710, the Court was asked to consider whether the decision of the Surrey School Board not to include three books depicting same-sex families in supplementary learning resources for certain grades was unreasonable.  Chief Justice McLachlin, speaking for the majority, found that the Board’s decision was unreasonable.  In coming to this conclusion, she said that:

[98]           In Brockie v. Ontario (Human Rights Commission), 2002 CanLII 63866 (ON SCDC), [2002] O. J. No. 2375 (Ont. Div. Ct.), the Divisional Court reviewed the decision of the Ontario Board of Inquiry in Brillinger v. Brockie, [2000] O.H.R.B.I.D. No. 3.  The Board had found that Mr. Brockie and Imaging Excellence Inc. breached the Ontario Human Rights Code when they refused to print certain materials containing gay and lesbian information.  The Board held that freedom of religion does not extend to the practice of those religious beliefs in the public marketplace.  On review, the Divisional Court upheld the Board’s decision, in part.  The Court said:

[99]           The Court, in considering whether the Board’s remedial order infringed Mr. Brockie’s freedom of religion, said that the further the activity is from the “core elements” of the religious belief, the more likely it is that the activity will impact on others and the activity is therefore less deserving of constitutional protection (para. 51).  The Court found that the exercise of Mr. Brockie’s religious freedom did adversely impact the rights of homosexuals in private commercial transactions.  In balancing the rights of Mr. Brockie and Mr. Brillinger and others, the Court held that Mr. Brockie was not required to print materials that would be considered in “direct conflict with the core elements of his religious beliefs” (para. 58), but could not deny the service sought in that case. 

[100]      In Halpern v. Canada (Attorney General) (2002), 2002 CanLII 42749 (ON SCDC), 60 O.R. (3d) 321 (Ont. Div. Ct.) (aff’d Halpern v. Canada (Attorney General) (2003), 2003 CanLII 26403 (ON CA), 65 O.R. (3d) 161 (Ont. C.A.) except as to remedy), the Court found that the common law definition of marriage that defined marriage as one man and one woman to the exclusion of all others violates the applicants’ equality rights under s. 15(1) of the Charter and was not saved under s. 1.  The Divisional Court rejected the argument that the law respecting marriage offended the applicants’ religious beliefs since they were not compelled or constrained in their religious beliefs.  After finding that the definition of marriage violated s. 15(1) of the Charter, and not saved under s. 1, Mr. Justice LaForme said:

[101]      In EGALE Canada Inc. v. Canada (Attorney General) (2003), 13 B.C.L.R. (4^th) (B.C.C.A.), the Court was asked to determine if there was a prohibition to the issuing of marriage licences to same-sex couples.  In following the reasoning in Halpern and Hendricks v. Quebec (Procureur général), [2002] 2506 Q.J. 3816 (Que. S.C.), Madam Justice Prowse said, when considering if religious groups would be required to participate in same-sex marriages, that:

[102]      In Syndicat Northcrest v. Amselem, 2004 SCC 47, the Supreme Court considered whether a rule prohibiting decorations, alterations and constructions on balconies infringed the religious beliefs of Jews who, in furtherance of their religious beliefs, erected succahs on their balconies during the religious festival of Succot. 

[103]      The Court, in determining the issue, set out its analysis of freedom of religion.  The Court said freedom of religion is personal and is “integrally linked with an individual’s self-determination and fulfillment and is a function of personal autonomy and choice”. (para. 42)  A person seeking to invoke religious freedom does not need to prove the “objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for courts to make”. (para. 43)  The Court said “[i]t is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection…”.(para. 47)  The Court is, however, entitled to inquire into the sincerity of the belief to ensure that it is not fictitious or capricious. (para. 52)

[104]      In summary, the Court said that, at the first stage of a religious freedom analysis, claimants must establish that they have a belief or practice that has a nexus with religion requiring a particular line of conduct and that they are sincere in their belief. (para. 56)  Once this has been established, then it must be determined, in a contextual analysis, if the conduct at issue interferes with the religious belief “in a manner that is more than trivial or insubstantial”. (paras. 59-60) 

[105]      Finally, in Reference re Same-Sex Marriage, 2004 SCC 79, the Supreme Court of Canada was asked to consider four questions put to it by the Governor General in Council related to the constitutional validity of same-sex marriage.  In answering the four questions, the Court found that extending the capacity to marry to same-sex couples was consistent with the Charter.  The Court was also asked to rule on the question of whether s. 2(a) of the Charter would protect religious officials from performing same-sex marriages contrary to their religious belief.  In answering this question in the positive, the Court said:

[106]      It is within this legal context that this Panel must determine if the Knights could have accommodated the complainants, given their core religious belief that same-sex marriages are morally wrong, without incurring undue hardship.  This is necessarily a spectrum analysis and, within this context, it is necessary for the Panel to determine where on the spectrum, between balancing the right of the Knights not to be required to act contrary to their core religious beliefs against the rights of the complainants to be free from discrimination based on their sexual orientation in accessing a public service, this case falls.  As the Courts have found, the further the act at issue is from the core religious belief of the person denying the service, the less likely the act will be found to be justified. 

[107]      The Panel accepts that the Knights’ religious belief that same-sex marriage is morally wrong is sincerely held and is intimately connected with the beliefs of the Catholic Church.  This is part of their spiritual faith and it is in conformity with the missions of the Catholic Church.  Furthermore, the Panel accepts that the complainants have the constitutional right to be married.

[108]      The Panel accepts that, if the complainants had wanted to be married in the Parish Church, the Catholic Church would have been within its constitutionally protected right to refuse to perform that marriage.  This is supported not only by the recent decision of the Supreme Court of Canada in Same-Sex Reference but by the earlier jurisprudence, which confirms that a person cannot be compelled to act contrary to his or her core religious beliefs.  This would fall on one end of the spectrum. 

[109]      The Panel also accept that if the complainants had wanted to have their wedding reception in the Parish Church, then the Catholic Church would not have been required to rent the Parish Church for this purpose, as compelling it to do so would have required it to provide its religious space for an activity contrary to its core religious beliefs.  This falls very close to the end of the spectrum where the Knights cannot be compelled to act contrary to their core religious beliefs. 

[110]      On the other end of the spectrum is the situation where the complainants seek access to rented commercial space, which was available for rent to the public and which had no religious affiliation, a situation similar to that raised in Brockie.  In this circumstance, the Panel would have had no difficulty finding that the complainants would have been entitled to rent the space for the solemnization and celebration of their marriage. 

[111]      In this case, which raises unique and difficult issues, the Knights were not being asked to participate in, or provide space for, the solemnization of a same-sex marriage.  However, they say they were being asked to give access to the Hall, after signing a rental agreement, for a function and purpose that was in conflict with their core religious beliefs: it did not matter to them that this was a wedding reception as opposed to a marriage ceremony.  Their view is that both a wedding ceremony and a wedding reception are events that are a “celebration” of a same-sex marriage.  In this respect, they say that cases such as Big M and Brockie support their assertion that had they rented the Hall they would have acted in violation of their core religious beliefs.

[112]      In the Panel’s view, the issue presented in this case lies at neither end of the spectrum, but somewhere along the continuum, requiring a delicate balance.  This was a Hall available to the public, regardless of religion; but it was also a Hall that could not be used for an event that was contrary to core Catholic beliefs.  

[113]      The Panel accepts that a person, with a sincerely held religious belief, cannot be compelled to act in a manner that conflict with that belief, even if that act is in the public domain.  This conclusion is supported by the Supreme Court of Canada’s decisions in Trinity Western and the Ontario Divisional Court’s decision in Brockie.  The Panel accepts that the Knights are entitled to this constitutional protection and therefore cannot be compelled to act in a manner that is contrary to their core religious beliefs.  The Panel also finds that, although the Knights were not being asked to participate in the solemnization of the marriage, renting the Hall for the celebration of the marriage would have required them to indirectly condone the celebration of a same sex-marriage, an act that is contrary to their core religious beliefs. 

[114]      However, in the Panel’s view this does not fully answer the question of whether the Knights accommodated the complainants to the point of undue hardship since the issue raised requires consideration of how to balance the Knights’ right not to act contrary to their core religious beliefs against the rights of the complainants, in the face of the steps that had already been taken to rent the Hall to the complainants.  It is within this context, that the Panel, and the case law, necessarily views the concept of accommodation to the point of undue hardship more broadly. 

[115]      In Meiorin, the Court held that the concept of undue hardship infers that some hardship is acceptable.  The Court said that:

[116]      In Grismer, in following the principles set out in Meiorin, the Court held that “[e]xclusion is only justifiable where the employer or service provider has made every possible accommodation short of undue hardship”. (para. 21)  The Court went on to say that:

[117]      In considering the concept of undue hardship in this case, and in the context of what the Court said in Meiorin and Grismer, it is helpful again to consider what the Courts have said about the intersection of freedom of religion and other constitutionally protected rights.  In Big M, the Court was clear that religious freedom is not absolute; in exercising one’s freedom of religion the fundamental freedoms of others have to be protected.  In Trinity Western, the Court recognized that the guarantee against discrimination based on sexual orientation is also not absolute.  In Ross, the Court confirmed the principle in Big M, and held freedom of religion cannot be used to roll back the advances made by other groups.  In Ross and Brockie, the Courts held that the further the activity is from the core religious belief of the individual, the less deserving it will be of constitutional protection.  In Syndicat Northcrest, the Court said that the conduct at issue must interfere with the religious belief in a manner that is more than “trivial or insubstantial”.  

[118]      The concept of undue hardship encompasses an assessment of the needs of the individuals seeking the accommodation.  In Meiorin, the Court set out a non-exhaustive list of important questions that may be asked when assessing if an employer or a service-provider has met its duty to accommodate to the point of undue hardship.  The questions include a consideration of whether alternatives were investigated which would have met the employer’s purpose.  Another question is whether there was a way to accommodate the person that was less discriminatory, yet still accomplish the employer or service-provider’s purpose.  (para. 65)  In Grismer, the Court concluded that, since the Superintendent of the Motor Vehicles Branch had taken the position that no accommodation was possible, he had failed in his obligations under the Code.  The Superintendent was required to show that he had “considered and reasonably rejected all viable forms of accommodation.” (para. 42)  As the Court said in Grismer, a person does not have the absolute right to be accommodated, but he or she has the right to be assessed to determine if an accommodation is possible.  (para. 44) 

[119]      Against this backdrop, the issue becomes whether, in the circumstances of this case, the Knights were required to accommodate the complainants, short of acting contrary to their core religious beliefs since, as the Panel has found, that the act of allowing access to the Hall falls somewhere on the spectrum between the absolute protection against acting contrary to one’s core belief and, the other end of the spectrum, where the service is one generally available to the public, has no religious affiliation and thus no constitutional protection.

[120]      Although we have accepted that the Knights could refuse access to the Hall to the complainants because of their core religious beliefs, in the Panel’s view, in making this decision they had to consider the effect their actions would have on the complainants.  In the circumstances of this case, the Knights could not simply act in a manner that adversely affected the rights of the complainants to be free from discrimination without considering the effect that would have on the complainants’ right to access a public service particularly because they had already agreed to rent the Hall to the complainants.  In the context of what was happening, specifically, where the parties had already entered into a contract, and the obvious adverse effect the Knights’ decision would have on the complainants, the Knights were required to consider all the circumstances and the particular circumstances of these complainants.  In this context, the question is whether the Knights could have done anything to accommodate them short of acting contrary to their core religious beliefs.  

[121]      In McLoughlin v. British Columbia (Ministry of Environment, Lands and Parks) (1999), 1999 BCHRT 47 (CanLII), 36 C.H.R.R. D/306 (B.C.H.R.T.), the Tribunal found that in these difficult circumstances, where one is balancing various interests, it is appropriate to search for a pragmatic and workable solution that minimizes the adverse effects on the rights of a complainant.  As the Tribunal said, this is consistent with the general rule where “all those involved are required to work together to find a solution that adequately balances the competing interests”. (paras. 75-77)  Although McLoughlin predates Meiorin and Grismer, it addresses the difficulty in searching for accommodation where there are competing interests.  Here the search for accommodation broke down when the Knights denied access to the Hall and broke their agreement with the complainants without considering any alternatives.  As the Tribunal said in McLoughlin, the process requires the party best placed to make a proposal to advance the accommodation process.  In this case, the Knights could have taken this initial step.  

[122]      It is clear that the concept of accommodation does not necessarily mean taking the specific steps that the complainant requests.  For example, in the employment context, where when an employee is disabled from performing his or her own job, the employer is required to determine if other jobs are available that may accommodate the employee or whether the employee’s job can be modified to accommodate the disability.  Although, in this case, the Knights could not offer the complainants access to the Hall, and the Panel does not find that they were required to find another Hall for the complainants, they were required to consider the effect on the complainants and any possible steps they could have taken before calling the complainants and advising them that the Hall was no longer available, given they had entered into a contract to this effect. 

[123]      The evidence was clear that, once the Knights received the telephone call that the event to take place was a same-sex marriage celebration, they determined they could not allow that to happen and immediately took action in this respect. In the Panel’s view, they could have taken additional steps that would have recognized the inherent dignity of the complainants and their right to be free from discrimination.  This is especially true when they learned, during the first telephone call with the complainants, that the event in question was a reception, and not a wedding, which they first believed to be the case and thus reacted on this basis.  The Panel does not view this case as a simple breach of contract, although the Panel acknowledges that the complainants could have pursued the issue as such.  The only reason that the Knights denied access to the Hall was because of the complainants’ sexual orientation, a reason that engages the Code. 

[124]      In this case, the Knights could have taken steps such as meeting with the complainants to explain the situation, formally apologizing, immediately offering to reimburse the complainants for any expenses they had incurred and, perhaps offering assistance in finding another solution.  There may have been other options that they could have considered without infringing their core religious beliefs.  The fact is they gave no thought to any option other than cancelling the rental.  In the circumstances of this case, including the fact that the Hall was not solely a religious space, and the existence of the agreement between the parties for its rental, the Panel finds that the Knights should have taken these steps, which would have appropriately balanced the rights of both parties.  

[125]      The Knights said that their actions did not result in the complainants being without a rental space to celebrate their marriage and that, since the complainants had found their own hall, the Knights cannot be criticized for failing to meet their duty to accommodate.  Although it is true that the complainants quickly found another hall to rent, this does not answer the question of whether or not the Knights met their duty to accommodate them.  Had the complainants not successfully searched for their own solution, the consequences to them would have been significant; they would have had no place to celebrate their marriage, a marriage that they had the constitutionally protected right to solemnize and to celebrate.  This should not be taken to mean that the Knights were required to find another hall for the complainants, but they were required to consider whether they could assist the complainants in that process, if necessary.

[126]      Only after the complainants sent a demand letter were the Knights prepared to compensate the complainants for the expenses they incurred but, in return, they wanted a signed release.  Introducing the need for a release, although it may have been legally prudent, only served to escalate the issues between the parties.  Although the Knights described the release as straightforward, the complainants did not view it in this manner.  The Knights, if they needed this legal protection, could have provided the form of the release in advance, without a meeting, and allowed the complainants to consult a lawyer, another step that would not have required them to act contrary to their core religious beliefs and may have resolved the issue between the parties. 

[127]      In the Panel’s view, and in the unusual circumstances that presented in this case, it would not have caused the Knights undue hardship to take the steps outlined above.  This type of accommodation would not have required them to act contrary to their core religious beliefs and, according to the evidence of Ms. Smith, would have been understood by the complainants and respected.  In the Panel’s view, these actions would not have irreparably harmed the Knights relationship with the Catholic Church.  Furthermore, in denying access to the Hall and then failing to consider other alternatives before communicating this decision, the respondents failed to consider the rights of the complainants and which resulted in undermining the complainants’ right to access a public service. 

[128]      In summary, the Panel finds that the Knights and Mr. Lazar failed in their duty to accommodate the complainants to the point of undue hardship.

[129]      The Knights and Mr. Lazar (again collectively referred to as the “Knights” in this section), argued, in the alternative, that s. 41 of the Code allows them to prefer members of their own religious group in the renting of the Hall, and such a preference does not constitute discrimination under the Code.  Section 41 of the Code provides:

[130]      In Caldwell, in considering whether the actions of the respondents in that case were exempted by s. 22 of the Code, now s. 41, the Court said:

[131]      In following the reasoning in Caldwell, the Supreme Court of Canada said in Brossard (Town) v. Quebec (Commission Des Droits de la Personne), 1988 CanLII 7 (SCC), [1988] 2 S.C.R. 279 that:

[132]      As argued by the Knights, in order to bring themselves within the protections afforded by s. 41 of the Code, they must establish first, that they are a non-profit organization that has as its primary purpose the promotion of the welfare of an identifiable group characterized by a common religion, and second that, in denying the rental of the Hall, they were granting a preference to members of an identifiable group. 

[133]      As we set out above, there is no question that the Knights are a not-for-profit organization and that the Hall is operated on this basis.  The Panel accepts that the purpose of the Knights is to promote the interests of the Catholic Church, a religious organization that may be entitled to the protection in s. 41 of the Code.  

[134]      However, although the Knights are closely associated with the Catholic Church, the real issue is whether the Knights, in denying the Hall, were granting a preference to an identifiable group, namely those of the same religious affiliation.  In the Panel’s view, they were not and therefore the protection of s. 41 is not available to them.

[135]      The Hall was not only rented to those in the Catholic community, to members of the Knights and their families, or to those who share the Catholic Church’s core religious beliefs.  The Hall was available to the public, regardless of the person’s or group’s religious affiliation.  There was no preference granted to the Knights or Catholics in the rental or access to the Hall.  In fact, the evidence was clear that there was no preference granted to any individual or group based on religion.  The evidence did not suggest that a person’s religion factored into the rental agreement.  

[136]      The Knights rely on Decision C.D.P. – 31, [1986] D.L.Q. 462 (Commission des droits de la personne), referred to in Brossard (Town), to support their position that they can deny benefits to non-members of their identifiable group in preference to members of their group.  In Decision C.D.P., a man sought to purchase a ticket to an event organized to celebrate International’s Women’s Day and was denied.  The man filed a complaint alleging discrimination based on sex.  In finding that the discrimination was justified, the Commission referred to s. 20 of the Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12, a section similar to s. 41 of the Code.  The Knights say that this case supports the proposition that the benefit resulting from the preference need not be membership itself, but may also be the services or facilities that the organization controls.  The Panel agrees with this characterization of the issue in Decision C.D.P , but concludes that it does not support the Knights position in this case. 

[137]      In Decision C.D.P., the preference was being given to women attending an all-women event; the preference was clear.  In this case, although the issue does not focus on membership, it does focus on the rental of the Hall.  The evidence was clear that the Hall is rented to groups and individuals regardless of their religious affiliation and no inquiries were made to determine that religious affiliation; hence, there was no preference. 

[138]      Although there was evidence that non-Parish groups or activities could be moved from the Hall in preference to Church member groups and activities, there was absolutely no evidence that this occurred with respect to the complainants.  In this case, there was no preference; the complainants were denied access to the rental because it was a same-sex marriage celebration not because the Knights were granting a preference to another group that shared the same core religious beliefs.   

[139]      The evidence does not support the Knights’ suggestion that those using the Hall came together “to engage in activities stemming from their shared religion”. For example, there was no evidence that the individuals attending Alcoholics Anonymous or the mother and tot group had to be practicing Catholics.  Furthermore, there was nothing to suggest that those attending these groups, or other functions in the Hall, had to support the Catholic Church’s view that same-sex marriage is morally wrong or that they “supported cardinal Catholic virtues”.  Given that the Knights made no inquiry about the religious views of those using the Hall, they could not have ascertained if those individuals supported the religious beliefs of the Catholic Church. 

[140]      The Knights also argue that cases such as Caldwell demonstrate that s. 41 of the Code is a “flexible tool that allows a religious organization to preserve the religious nature of that organization through making preferences that apply within or without the identifiable group it serves”.  The Panel also finds that Caldwell is not determinative of the issues in this case.  In Caldwell, the preference was given to Catholic teachers who were to reflect the Catholic Church’s teaching within a Catholic institution.  That is not the case here.  As indicated above, the Hall was rented to non-Catholics and non-Catholics can attend events in the Hall.  There is no preference given to practicing Catholics and those attending the Hall do not have to reflect the teaching of the Catholic Church. 

[141]      The Panel finds that, in the circumstances of this case, the Knights are not entitled to the protection of s. 41 of the Code. 

[142]      Having determined that there has been a breach of s. 8 of the Code, the Panel now turns to the issue of remedy.  Section 37 of the Code, provides, in part:

[143]      The complainants made the following brief submissions with respect to remedy:

[144]      The Knights and Mr. Lazar did not take a position on remedy.

[145]      The Panel declines to consider if it should order the Knights and Mr. Lazar to apologize to the complainants.  In the Panels’ view, such a step would not be appropriate in circumstances of this case.  It was clear from the proceedings that both Mr. Lazar and the Knights were sorry for how the events unfolded in this case.  In addressing the complainants’ desire to have an apology, the Panel is prepared to make a declaration pursuant to s. 37(2)(b) of the Code, that the Knights and Mr. Lazar, acting on behalf of the Knights, discriminated against them contrary to s. 8 of the Code. 

[146]      Having found the Knights contravened the Code, the Panel orders the Knights and Mr. Lazar to refrain from committing the same or a similar contravention pursuant to s. 37(2)(a) of the Code. 

[147]      The Tribunal has the authority to award expenses arising from the contravention.  The complainants seek the sum of $594.59.  This amount includes the cost of reprinting their invitations ($186.07), postage to resend the invitations ($24.34) and the cost of renting the alternate hall ($384.18).  The complainants would have paid $150.00 to rent the Hall.  The expenses incurred by them to rent an alternate hall should therefore be reduced by this amount.  Therefore, pursuant to s. 37(2)(d)(ii), the Panel awards the complainants the sum of $444.59 for expenses incurred as a result of the contravention of the Code. 

[148]      The complainants seek $1,000 for compensation for injury to dignity, feelings and self-respect.  This is, as the complainants acknowledged, a nominal award.  The complainants felt upset, angry and distressed that they were being denied the Hall rental.  They had to take immediate steps to find an alternate location and, but for their timely actions, the situation could have been very difficult.  They were understandably, if wrongly, concerned that their wedding, and reception, would be disrupted by the Knights and took steps to prevent that.  They were upset by the comments made by the Knights in a newspaper article, adding to the distress they already felt about the situation. 

[149]      The circumstances giving rise to this complaint demonstrate how misunderstandings can have a profound impact on how we interact with each other in a society of diverse cultural, social, political and religious beliefs.  As Chief Justice McLachlin said in Chamberlain, others with differing beliefs are entitled to equal respect; this does not depend on the belief that their values are right, but on the belief that they have a claim to equal respect regardless of whether they are right. 

[150]      As we have found, the Knights and Mr. Lazar were entitled to hold and act on their core religious beliefs; however, in doing so, they had to respect the rights of the complainants to have access to a public space to celebrate their same-sex marriage, a right that is constitutionally protected.  In these sensitive and difficult circumstances, people must approach these issues with respect even in the face of disagreement. 

[151]      In the circumstances, the Panel has decided that an award of $1,000 to each of Ms. Chymyshyn and Ms. Smith for injury to their dignity, feelings and self-respect pursuant to s. 37(2)(d)(iii) of the Code is appropriate. 

[152]      The complainants reserved their right to make submissions on costs under the Act.  Section 47 of the Act provides that parties appearing before certain tribunals may seek costs in that proceeding.  This section of the Act does not apply to complaints before the Tribunal.  Parties are entitled to seek costs under s. 37(4) of the Code against other parties who have engaged in improper conduct in the processing and, hearing of, the complaint.  There was nothing in the respondents’ conduct that, in our view, would attract a cost order.

[153]      The Panel makes the following orders: