On Lesbians and Knights (Redux)

Patronus' note: I meant to publish this last week, but the post was deleted, I had to start from scratch, and then both Domina and I were sidetracked by our weekend-long attendance at a local political convention. The analysis is nevertheless still relevant...

More details have surfaced in the case about the BC Human Rights Tribunal case, in which the Knights of Columbus were accused of violating the BC Human Rights Code by preventing a lesbian couple from holding their wedding reception in a K of C-owned hall. For those who are unaware, the Knights are an international Catholic men's organisation; the chapter in question clearly felt a religious obligation to prevent a same-sex wedding from being celebrated on its premises.

As I indicated below, I had thought that this case would have been best settled in the courts on a contractual breach basis, given that the couple had already placed a deposit on the hall with the intent of using it. But the Globe reports that, once the K of C discovered the reason for which their hall was being used, they:

"...returned the couple's deposit and paid for both the rental of a new hall and the reprinting of wedding invitations after Ms. Chymyshyn and Ms. Smith (the couple) complained that invitations listing the hall's address for their reception had been mailed."

Let's get this straight. The K of C essentially settled the issue with the couple in question, yet the complainants still brought forth a claim of discrimination against the proprietors of the hall.

What a display of gratitude for what seems, superficially at least, to be a mutually acceptable resolution to an unfortunate situation for both parties.

Likelihood of success for the couple launching the complaint

As I indicated earlier, I would post a brief analysis of the potential success of the claim brought forward. So, here goes:

The K of C, in publicly advertising its hall's availability to the public, falls under the ambit of the BC Human Rights Code, as the letting of the hall is considered a "...facility customarily available to the public", the denial thereof on account of sexual orientation being prohibited by the Code.

It is clear that the couple was discriminated against for the purposes of the BC legislation.

There is, however, a defence available in the Code to those who have a "bona fide and reasonable justification" to discriminate in the provision of a facility.

In order to invoke this defence, the Supreme Court has articulated a test that it generally uses to ascertain whether the impugned standard (the one challenged as discriminatory) is justifiable for the purposes of the defence I noted above. While used mainly in an employment or service provision context, presumably the standard could be used in this case, though it is unclear whether the BC Tribunal would.

In its attenuated form, once a violation of the Code's anti-discrimination provisions has been established, the test puts an onus on the service-provider allegedly engaging in discrimination to illustrate that any accommodation of the complainant would result in "undue hardship". Could the K of C have permitted outside individuals to run the reception, so that it wouldn't seem as if the K of C sanctioned the event? Could the K of C removed any of its paraphernalia from the hall to effect the same end? If the K of C was concerned about activities occurring in the hall that may violate tenets of its religion, why would it advertise the hall's availability to the public? All of these questions are ones that could be considered at this stage of the inquiry into undue hardship.

It is likely that the K of C would have difficulty establishing that such a refusal to let the hall to the couple was reasonable given the recent history of Canadian Human Rights jurisprudence, especially given courts' high threshold for what constitutes undue hardship.

As I earlier indicated, it seems that the only course of action of which the K of C could avail itself, in order to succeed, would be to challenge an adverse tribunal ruling on the grounds that it violates the Knights' freedom of religion under the Charter of Rights.

This saga is yet another sad illustration of the excess of Canadian Human Rights Codes--that an attempt to legitimately assert your freedom of religion and conscience could be ruled "discriminatory", a setback that, even if overturned, could have a chilling effect on one of the liberties so fundamental to an open, liberal, and democratic society.