The Ontario Employment Standards Act excludes from its
protection holders of a "religious office". The Ontario
Labour Relations Board has issued a decision interpreting this
The organization, the Kashruth Council, is a not-for-profit
organization the main objective of which is to ensure the
availability of Kosher food products through Kashruth (Jewish
dietary laws) certification and supervision of food service
production and manufacturing businesses.
To do this, the Kashruth Council engages Kosher food inspectors,
referred to as "Mashgiachim", to supervise hundreds of
industrial food establishments. Rand was one such inspector.
A series of events resulted in the Kashruth Council issuing a
letter to Rand advising that his "employment . . . is
terminated effective immediately for just cause". Rand filed a
claim for amounts owing to him as an "employee" under the
Employment Standards Act.
The OLRB found that the Mashgiach was a "religious
position" which has "no duties which do not serve a
religious purpose". However, Rand did not hold a
The OLRB held that, "The essential feature of the holder of
a political or religious office is independence. A person is
elected or appointed to the office and then acts in that capacity
with minimal oversight". Also, the functions or work that the
person performs must be significant or important to fulfill
religious obligation or ritual. According to the OLRB, Rand was not
independent. The council exercised employment control over him.
Also, the manner in which the Kashruth Council carried out the
termination suggested that Rand was subject to the Kashruth
Council's control, which pointed to an employment relationship.
The Council even referred to him, in the termination letter, as an
One wonders whether the OLRB's "independence" test
is correct. It would seem that the test should be whether the
person holds an "office" that is "religious";
independence does not seem to be a hallmark of either of those two
factors. The exemption would appear to have been intended to
exclude, from the protection provided to "employees",
people who are not seen, and do not see themselves, as employees,
but rather as in a spiritual or religious position. It remains to
be seen whether future panels of the OLRB will apply the same
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Ten days following the election, join us for a discussion with Gary Doer, former Canadian Ambassador to the US, and Gordon Giffin, US Ambassador to Canada under Bill Clinton, to discuss how the new President and Congressional makeup will shape US-Canada relations for years to come.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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