Human rights tribunals across the country are grappling with what is – and more importantly what is not – discrimination under human rights legislation. A human rights tribunal cannot consider a general allegation of unfairness; a complaint must relate to a specific, legislated protected ground such as creed or religion, sex, sexual orientation, ancestry, race, family status, etc.[1]
In our August 2023 newsletter, we discussed how a singular belief regarding vaccination or masking is not a “creed” and thus not a protected ground. In line with those decisions, the Ontario Human Rights Tribunal (the “Ontario Tribunal”) recently confirmed that ethical veganism is also not a creed and thus not a protected ground of discrimination.
On the other hand, a recent decision from the British Columbia Human Rights Tribunal (the “BC Tribunal”), and a policy statement from the Ontario Human Rights Commission (the “Ontario Commission”), provide that discrimination on the basis of caste is an intersectional form of discrimination because caste can be covered under a combination of race, ancestry, ethnic origin, creed and/or family status.
Ethical veganism is not a creed
In Knauff v Ontario (Natural Resources and Forestry),[2] the applicant claimed his employer was required to accommodate his dietary restrictions because his ethical veganism was protected based on creed. The applicant’s dietary restrictions were not related to religious belief. The applicant described himself as sincerely committed to making informed choices and decisions to avoid supporting animal-reliant industries and to prevent the killing of animals.
The Ontario Tribunal found ethical veganism is not a creed because ethical veganism only provides “general philosophical observations” but does not “address the existence or non-existence of another order of existence and/or a Creator.”
While a creed need not be a religious belief, it still must address ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a creator and/or a higher or different order of existence. In this case, the applicant failed to provide the Ontario Tribunal with evidence that ethical vegans derive spiritual fulfillment from their practices and beliefs.
Caste-based discrimination is prohibited
In both British Columbia and Ontario, caste-based discrimination has been recognized as discrimination under human rights legislation, and it is likely other provinces would follow suit should the issue arise in those jurisdictions.
In Bhangu v Inderjit Dhillon and others,[3] the BC Tribunal found that the use of a derogatory comment toward the applicant in reference to his caste was discriminatory. The BC Tribunal held the applicant’s caste fell within the protected ground of ancestry:
Mr. Bhangu’s ancestry involves him being a person from the Slur caste. I treat the term ancestry, in its most basic form, as relating to a person’s biology, as can be measured through their DNA or genetic make up, and which is passed down from one generation to the next through reproduction. Mr. Bhangu provided uncontested evidence that his family and ancestors are all from the Slur caste.
The BC Tribunal held the applicant’s caste also fell within the protected ground of race:
Mr. Bhangu’s race involves him being a person from the Slur caste. I treat the term race as a social construct within which a person or group labels another person or group based on their physiological appearance, their social, cultural, and political make-up, their legal status in society, and other personal attributes. … Mr. Bhangu provided evidence regarding the social, political, and legal status aspects of others labelling him as a member of the Slur caste group.
The Ontario Commission recently released the OHRC’s Policy position on caste-based discrimination[4] (the “Policy”). Ontario Commission policies are not binding on the Tribunal but are generally relied upon and adopted by Tribunal decision makers. Under the Policy, caste discrimination is prohibited under existing grounds in the Ontario Human Rights Code[5] including ancestry, creed, colour, race, ethnic origin, place of origin and/or family status. The Commission defined “caste system” as:
a social stratification or hierarchy that determines a person or group’s social class or standing, rooted in their ancestry and underlying notions of “purity” and “pollution.” It is a traditional practice based in the political, social, cultural and economic structures of some cultural or religious communities and the societies in which it is practised.
An individual may experience caste-based discrimination in employment if they are denied a promotion, assigned less desirable job duties, restricted from certain occupations, or harassed because of perceptions about caste.
At present, there is limited case law in Ontario dealing with caste-based discrimination. However, in Parikh v Staples Canada ULC,[6] an interim decision, the Ontario Tribunal found that allegations of caste-based discrimination could amount to a prima facie case of discrimination..
In Parikh, the applicant alleged his supervisor said people of the supervisor’s caste should advance before people of the applicant’s caste. The Ontario Tribunal found this allegation, if proven, could have a reasonable prospect of success. Thus, the Tribunal did not dismiss the allegation on a preliminary basis. The Tribunal dismissed other allegations as having no reasonable prospect of success because they had no air of reality or because they were not related to a protected ground of discrimination.
Takeaway for employers
Human rights-related caselaw is always evolving, and it’s important for employers to remain as current as possible. Given the developing law on caste-based discrimination, employers may consider updating their human rights policies, procedures and training materials to recognize and address this.
To learn more and for assistance, contact Sherrard Kuzz LLP.
[1] Discrimination based on 17 different personal attributes – called grounds – is against the law under the Ontario Human Rights Code. The grounds are citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, receipt of public assistance (in housing) and record of offences (in employment).
[2] 2023 HRTO 1729.
[3] 2023 BCHRT 24.
[4] Ontario Human Rights Commission, OHRC’s Policy position on caste-based discrimination (26 Oct 2023).
[5] RSO 1990, c H.19.
[6] 2021 HRTO 62.
