Canada: York University, Religious Accommodation, And The Absence Of Bright Lines

Last Updated: January 21 2014
Article by Derek J. Bell

York University caused much controversy earlier this month by agreeing that a male student was not required to meet with female class members in connection with a group project. While the male student's reason for the request was apparently based on a religious belief,1 the university's decision was based on the fact that the course was advertised to be an online course with no in-person participation required; as such, the student was not required to participate in any way in the group project.

Notwithstanding this explanation, a furor erupted over York University's decision. Justice Minister Peter MacKay commented that "This is what we've tried to combat in places like Afghanistan". A Globe and Mail columnist declared "I expected this back in Iran, not at York University". The professor at the heart of the matter – who originally refused the student's request – said that to accommodate would make the university an "accessory to sexism".

These views are certainly valid. But it's worth considering the issue closely, because this will not be the last time that public institutions are required to consider the scope of religious accommodation. Indeed, according to a recent Ontario Human Rights Tribunal decision, the "religions" or "creeds" whose needs must be accommodated even include secular type beliefs such as atheism or humanism. With such a broad ambit of beliefs clamoring for accommodation, it is worth asking: where should accommodation begin, and where should it end?

The York professor who denied the request told CBC news that the issue is sufficiently important that a Royal Commission should be struck on the issue. And if that sounds familiar, that's because it is: that's what happened in Quebec. The Quebec Charter of Values was at least in part a reaction to the Bouchard-Taylor Commission on Reasonable Accommodation. That Commission proposed the promotion of secularism including the prohibition of certain public sector employees from wearing religious symbols.

So where does religious accommodation stand, particularly when it brushes up against rights of other people? Here's what we know for sure from Charter jurisprudence, and similar views can be found in human rights tribunal decisions.

First, the Supreme Court of Canada has said that the freedom of religion is "expansive". The Court said 20 years ago that "Freedom of religion is of fundamental importance to Canadian democracy. If reasonable accommodation of religious beliefs can be undertaken..., it should be."

Second, the Supreme Court of Canada has consistently rejected creating a "hierarchy of rights", where one right is considered to be superior to another. In Dagenais v CBC, Chief Justice Lamer wrote for the majority that "[w]hen the protected rights of two individuals come into conflict ... Charter principles require a balance to be achieved that fully respects the importance of both sets of rights." The Court has never waiver from this approach, whether dealing with codes of conduct at Trinity Western, or contemplating same-sex marriage legislation. It's all about balance. It is unlikely that the Supreme Court will ever abandon this contextual and flexible approach.

Third, the Supreme Court of Canada has differentiated between the freedom to believe however the individual sees fit, but "the freedom to act upon those beliefs is considerably narrower". In one case, the majority of the Supreme Court said that "freedom of religion, like any freedom, is not absolute. It is inherently limited by the rights and freedoms of others."

Fourth, we know that the courts caution against the "tyranny of the majority". In the earliest case on freedom of religion, Justice Dickson (as he then was) wrote that "What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view". Just as freedom of expression protects unpopular or distasteful views not shared by the majority, freedom of religion also protects unpopular or distasteful practices not shared by the majority.

One can quarrel with any of these conclusions of the Court. Notwithstanding the protestations that there is no hierarchy of rights in Canada, there clearly is: the right to life, for example, will always prevail over other rights such as religion, as it did in B.(R.) v Children's Aid Society. Notwithstanding the protestations that we are to protect against the tyranny of the majority and protect the unpopular views as much as the popular ones, the Court was willing to uphold the wrongheaded legislation in Whatcott which violated Whatcott's freedom of speech, which decision was clearly influenced by the distasteful nature of the statements made by Whatcott.

Quarreling aside, we are nonetheless left with what these appellate cases stand for, as described above. Judged by that measure, how does the university's decision stand? If we were to assume that accommodation had been granted on religious grounds (contrary to the university's claims), then the university did what it was supposed to do in terms of process, regardless of whether one agrees with the result. The Supreme Court has said that if religious accommodation is possible, then it should be. The fact that it results in a conflict with equality rights of female class members is not, in and of itself, dispositive: there is no hierarchy of rights in Canada.  And it is also not dispositive that equality rights are infringed if accommodation is granted, just as it is not dispositive that religious rights are infringed if it is not: it is all about balancing or reconciling the competing rights.

The result of the framework created by our appellate courts is one which, by definition, admits of no clear answer.  Outside of Quebec at least, we are not fond of bright-line tests when it comes to human rights. In some instances, religious accommodation will harm, limit, or affect other rights, and in some instances, religious accommodation will not be possible (harming, limiting or affecting the claimant's rights).  The result will invariably be one in which reasonable people might disagree.  What is important is to not allow the tyranny of the majority to dominate the debate, simply because the overwhelming majority of us do not share the individual claimant's views.

Viewed from that lens, York University did exactly what it should have done. A kneejerk refusal to accommodate is decidedly what the universities are not supposed to do. People may well disagree with the outcome in this case, but that does not make York University the same thing as Afghanistan or Iran. It does not make the decision-makers a group of insensitive sexist thugs.  It's a contextual balancing framework that the Supreme Court created, and York University had no choice but to apply that framework.  Reasonable people can and will disagree on the outcome of any balancing exercise.  There's no doubt that it may well be time to have a rational debate on the limits of reasonable accommodation.  But those who give an expansive view of religious accommodation are entitled to those views and do not deserve the torches and pitchforks York University has had to face.


1 Other commentators have mused that this may not have been a bona fide religious belief, as no religion ascribes to this particular view.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Derek J. Bell
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.