The Québec Charter of Human Rights and Freedoms (Québec Charter) as well as the Canadian Charter of Rights and Freedoms (Canadian Charter) confer a right to freedom of religion and prohibit discriminatory practices based on religion.

Under the Québec Charter and Canadian Charter, the expression “freedom of religion” has been construed in a broad sense. Indeed, Canadian courts have often held that a belief or practice does not need to be rooted in an official religious dogma in order to be protected; rather, as long as the person who entertains such a belief or practice is sincere and undertaking it in order to communicate with a divine entity or as a function of his spiritual faith, they are protected.[1] In other words, even if a religious practice is not a compulsory practice within its religion, its link to a religion and the subjective belief of the person are sufficient to be granted protection under both charters.[2]

It is important to note that such protection against religious discrimination is not restricted to traditional religions as it also covers religious sects, regardless of their size and degree of organization. Both Charter’s protection can also be extended to atheism, ironically defined as the absence of belief in a religion.

Moreover, the Québec Charter does specifically prohibit discrimination based on religion in employment. This protection against discrimination is extensive and covers: the hiring process; apprenticeship; duration of the probation period; vocational training; promotion; transfer; displacement; laying-off; suspension; dismissal; conditions of employment of a person; and in the establishment of categories or classes of employment. As such, absent reasonable justification, practices in the workplace that create a distinction, exclusion or preference based on religion will be illegal per se under the Québec Charter.

In view of the above, an employee is entitled to reasonable accommodation from his employer regarding his conditions of employment in order to allow him to practice his religious rites. However, a limit to this right does exist. As a matter of fact, when a measure of accommodation would create undue hardship, an employer can refuse to accommodate the employee. What constitute an “undue hardship” may vary greatly depending on the nature and cost of the accommodation in relation to the circumstances of each case, including the size, resources, nature and structure of the employer’s operation. The burden of proof is the employer’s.

An employee may request to be accommodated in various situations by different means including a special work schedule and the permission to wear a specific religious symbol such as a kirpan or a hijab. Each of these situations must be considered on a case-by-case basis. The Amselem Supreme Court of Canada judgment offers a relevant illustration. In this case, a Sikh employee had asked his employer to be relieved from the obligation to wear a safety helmet because of his turban. The Supreme Court held that wearing safety helmet was a bona fide occupational requirement[3]. The same instance decided otherwise in Commission scolaire régionale de Chambly v. Bergevin where it concluded that a School Board had failed to take reasonable steps to accommodate three Jewish teachers who had asked for a day off to celebrate Yom Kippur. The Supreme Court did state that the School Board was under the obligation to remunerate the teachers during their absence because there were no evidence that it would place an unreasonable financial burden upon the School Board[4].

Remedies are available for an employee believing he is a victim of religious discrimination in the context of his employment. Among them, he can file a formal complaint with the Commission des droits de la personne et des droits de la jeunesse, which will conduct an investigation. The Commission may then recommend any corrective measures it deems appropriate and, if the employer fails to comply with them, may apply to The Human Rights Tribunal on behalf of the complainant to seek appropriate measures. Unionized employees can rely on the grievance procedure set forth in the collective bargaining agreement.

[1] Syndicat Northcrest v. Anselem, [2004] 2 R.C.S. 551.

[2] Commission des droits de la personne du Québec v. Autobus Legault Inc., [1994] R.J.Q. 3027 (T.D.P.Q.), appeal allowed on different grounds [1998] R.J.Q. 3022 (C.A.).

[3] Bhinder v. CN, [1985] 2 SCR 561.

[4] Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 SCR 525.

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