Yesterday, the Federal Court ruled in favour of two religious organizations challenging their 2019 Canada Summer Jobs denials!
The Bottom Line: CSJ Applicants Successful, Awarded Costs
Two religious organizations – BCM International and Redeemer University – successfully challenged their 2019 Canada Summer Jobs rejections. In both cases the Federal Court held that the government process was unfair to the applicant organizations and that alone would have been sufficient to find in their favour. But the Court went further in the BCM decision and found the denial unreasonable. Because the issue could be decided on procedural grounds, the Court did not make a decision on the various Charter claims.
In terms of a remedy, there was no option to send the applications back for re-assessment. Instead, the Court issued declarations that the government breached its procedural fairness obligations and awarded costs to the applicants.
The Procedure Was Unfair
An administrative decision maker has a duty of fairness. What fairness demands will depend on the facts of specific circumstances. Procedural fairness ensures that decisions are made in a fair and open procedure, knowing what the issue is (e.g. “the case to be met”), with an opportunity for participation – providing evidence, putting forward views – and having it all properly considered by the decision maker.
In both cases, the procedure was unfair. BCM was not given notice of the issues and was not given a chance to provide evidence. It could not have known it was going to be deemed “ineligible because it allegedly discriminates on the basis of prohibited grounds.”
Similarly, Redeemer was not given notice of the case to be met or an opportunity to provide relevant evidence. Nothing in the Minister’s letter shows the Minister believed Redeemer unlawfully discriminated or that the Minister had any issue with Redeemer’s policies. The Court held that the letter “was not … a genuine attempt to seek clarification or further information. […] Sending the letter was simply going through the motions to appear to be fair, not an exercise in fairness itself.”
The BCM Denial Was Unreasonable
For BCM, the Minister never actually assessed whether the project discriminated contrary to applicable laws. In “an after-the-fact attempt at justifying the decision” the government contended that a 2018 BCM summer camp staff application asked employees to divulge their beliefs about sexuality. According to the government, this was sufficient to raise concerns about BCM discriminating.
The Court disagreed. It found there was nothing in the record to show this was the basis for excluding BCM. And if there had been, it would “clearly engage BCM’s Charter interests.” The decision did not show how BCM purportedly discriminates and it was unreasonable for the Minister to reject its application.
The Charter Claims
Even though the Charter issues weren’t addressed, one of the two judgments made an important comment: just because it wasn’t necessary to make a decision on the Charter questions, the government “should take no comfort from this conclusion.” Why? There was no evidence that they had “made any overt attempt” to consider the organization’s religious freedom, freedom of expression or freedom of association. The Court gave what appears to be a caution to the government, noting that
…should it be established in another case that officials discriminated in administering funding programs against faith-based institutions because of the sincerely held religious beliefs of their community, a finding of a Charter violation may well result. Such institutions must be treated not just with procedural fairness but also with respect for their Charter-protected rights.
This pair of decisions brings great news for religious CSJ applicants. The Court set out how procedural fairness standards apply in the CSJ context to ensure fair and reasonable decisions moving forward. This requires transparency in the decision-making process, an opportunity to provide relevant evidence, and a decision that shows the government actually assessed whether projects discriminate based on applicable laws by clearly indicating how the applicant discriminates.
CSJ Concerns Vindicated
CCCC is pleased to see this positive outcome. After many years of speaking out on CSJ issues through blogs, op-eds, academic papers, meeting with political leaders, and coordinating with other organizations to collectively advocate, CCCC welcomes these court decisions. They affirm the CSJ application process was, in these cases, unfair. The decisions bring a measure of justice and vindication to religious CSJ applicants and sets clear expectations for fairness in the future.
Both decisions are available online: BCM International Canada Inc. v Canada (Employment, Workforce Development and Labour), 2021 FC 687 and Redeemer University College v Canada (Employment, Workforce Development and Labour), 2021 FC 686.
We’ll post more on the decisions and their significance – stay tuned!
Noteworthy is provided for general information purposes and does not constitute legal or professional advice. Every organization’s circumstances are unique. Before acting on the basis of information contained in this blog, readers should consult with a qualified lawyer for advice specific to their situation.