Federal Court of Canada rules in favour of Christian charities denied eligibility for Canada Summer Jobs funding
“[Faith-based] institutions must be treated not just with procedural fairness but also with respect for their Charter-protected rights.”
– Justice Mosley, Federal Court of Canada
On June 29, 2021, the Federal Court of Canada issued decisions in two important judicial review applications arising from the 2019 Canada Summer Jobs grant program (“CSJ”). The cases involved challenges brought by two unrelated Christian organisations, a Reformed Christian university and a bible camp, alleging they were denied access to the CSJ program based solely on their biblical beliefs around marriage and sexuality.
The first applicant, Redeemer University College, was deemed ineligible for allegedly failing to demonstrate that it “provided a workplace free of harassment and discrimination” (despite expressly welcoming LGBTQ applicants for its proposed summer positions and having provided its comprehensive anti-discrimination policy as part of its application). The second applicant, BCM International (Canada) Inc., was deemed ineligible for allegedly restricting access to employment or otherwise “discriminating contrary to applicable laws, on the basis of prohibited grounds”. Both applicants, represented by the Acacia Group (Redeemer) and the Justice Centre for Constitutional Freedoms (BCM), vigorously denied that they had unlawfully discriminated or otherwise acted improperly.
In addition to some very clear administrative law concerns, these applications raised several important Charter issues around the applicants’ rights to manifest their sincere beliefs, to associate around those beliefs, and not to be prejudiced in their dealings with government on the basis of either. CLF was granted leave to intervene in the proceedings, making both written and oral submissions as a friend of the Court. CLF’s submissions focused on the Charter implications of permitting governments to deny otherwise eligible applicants access to public benefits on the basis of their lawful religious beliefs and associations. More specifically, CLF highlighted the scope and application of the federal government’s constitutional duty to remain neutral towards religious beliefs in the administration of public benefits. The Court was engaged during CLF’s submissions, and Justice Mosley’s questioning throughout both hearings indicated that he was alive to these and other Charter concerns raised by the government’s conduct.
In an attempt to avoid the Charter claims altogether, the government argued extensively that the applicants’ Charter rights were not implicated by these decisions at all, since CSJ funding decisions are highly discretionary and the applicants had no “positive rights” to it. CLF expressed concern that the acceptance of such reasoning would be tantamount to conceding that the Charter does not constrain governments at all in their administration of public benefits. On this point, Justice Mosley concluded as follows:
[31] I disagree that the decision was highly discretionary given the elaborate and detailed framework developed by ESDC that governed the determination of eligibility for the CSJ program. The decision affected, as counsel for the Applicant argued, the right to stand in the line for assessment with other eligible projects. That stage of the process would have been highly discretionary but BCM was never given a fair chance for its application to be considered on its merits.
[BCM decision]
CLF is grateful to see the court’s confirmation that Christian organizations are indeed entitled to “stand in line” with all other Canadians to access publicly funded programs.
Ultimately, Justice Mosley found it unnecessary to decide the applicants’ Charter claims, having found clear breaches of the government’s duty of procedural fairness in both cases. Even so, the Court reminded the federal government of its concomitant duty to respect religious applicants’ Charter rights, even in the administration of discretionary benefits, stating:
[47] I agree with the Respondent that the Court should avoid making pronouncements on Charter questions if it is not necessary to resolve an application for judicial review. The Respondent should take no comfort from this conclusion. There is no evidence in the limited record of the decision-making process that the Respondent made any overt attempt to consider Redeemer’s rights to freedom of religion, freedom of expression or freedom of association in considering its application. 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.
[Redeemer decision]
CLF is pleased with Justice Mosley’s inclusion of this stern warning to the federal government in his reasons. There is no room in our free, democratic, and pluralist society for religious tests or other discriminatory means of administering publicly funded benefits. CLF remains vigilant in its opposition to such measures and in its advocacy to ensure all Canadians enjoy equal protection and benefit of the law, as guaranteed by the Canadian Charter of Rights and Freedoms.
Further reading:
Federal Court of Canada’s decision in BCM International (Canada) Inc v. Canada (Minister of Employment, Workforce Development and Labour, and the Attorney General of Canada), 2021 FC 687
Federal Court of Canada’s decision in Redeemer University College v. Canada (Minister of Employment, Workforce Development and Labour, and the Attorney General of Canada), 2021 FC 687