Thinking about hiring a student? The strings attached may have been cut

by Jeffrey A.L. Kriwetz

For students and young people, finding a job can be a challenge. They need work experience, but often many small employers do not have the budget or desire to hire and train students and young people with little or no experience.

Several years ago the federal government of Canada sought to address this problem by implementing the summer jobs program. In basic terms, the program is designed to provide wage subsidies to small businesses and not-for-profit organizations if they agree to hire students and young people, and meet the stated eligibility requirements.

For many years the program operated successfully and with little controversy. Then in 2018, the Liberal government seemed to decide that the program was not meeting its social and political objectives. Consequently, the government imposed a new eligibility requirement that neither the core mandate of an organisation, nor the job itself, opposed human rights, including sexual orientation, abortion, and gender identity. Therefore, organisations were required to adopt the government’s point of view on such issues as a condition to receiving funding. Of course, many Christian organisations, including several which had successfully participated in the program for many previous years, found the adoption of the government’s social position completely unacceptable and they refused to sign the required attestation. Because of this, those Christian organisations did not receive any funding from the program.

In 2019, in response to the backlash caused by the 2018 program requirements, the same Liberal government amended the criteria by dropping the references to sexual orientation, abortion, and gender identity and replaced it with a more generic statement which said that: “Any funding under the Canada Summer Jobs program will not be used to undermine or restrict the exercise of rights legally protected in Canada.” It seemed that the government recognized that it had overstepped and that the change in language might have reflected a change in attitude. That, however, was not the case.

This brings us to the cases of Redeemer University College (“Redeemer”) and BCM International Canada Inc. (“BCM”).

Redeemer is a Christian university located in Hamilton, Ontario that adheres to historic Christian views relating to sexual morality and marriage. From 2006-2017, Redeemer had successfully participated in the program without incident. In 2018, however, it refused to sign the required attestation and was denied funding.

In 2019, Redeemer applied once again. One of the questions on the application form asked how Redeemer would ensure that it had implemented measures to ensure its hiring practices and work environment was free from harassment and discrimination, such as raising awareness and prevention activities. The government agency reviewed Redeemer’s application and sought further clarification on this point and Redeemer replied to the request. The government, however, deemed the response unsatisfactory and denied the application on the basis that Redeemer did not satisfy the harassment and discrimination criteria. There was evidence that the officer assessing the application relied on information posted on Redeemer’s website years before and on information in an article about faith-based organisations.

BCM is a Christian institution which operates summer camps in Ontario. It also received funding from the summer jobs program from 20112017 without incident, but refused to sign the government’s attestation in 2018 and was denied funding that year.

In 2019, BCM applied once again. During the application review process, the government sought some “missing information” from BCM regarding its health and safety practices and the duration and compensation provided for mandatory training for the jobs it was providing. BCM responded to those requests. Nevertheless, the government denied the application on the basis that BCM’s project “restrict(s) access to programs, services, or employment, or otherwise discriminate(s), contrary to applicable laws, on the basis of prohibited grounds, including sex, genetic characteristics, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation, or gender identity or expression.”

In separate lawsuits, both Redeemer and BCM sought to overturn the denial of their respective applications on two grounds: first, that they were denied procedural fairness and, second, that their Charter rights of freedom of conscience and religion and freedom of association had been violated.

In decisions released on June 29, 2021, the Federal Court dealt a rather strong rebuke to the government and ruled in favour of Redeemer (2021 FC 686) and BCM (2021 FC 687). In reaching its decisions, the court found that the government failed to provide the organisations with procedural fairness by failing to articulate what its specific concerns were and by failing to give the organisations the opportunity to respond to those concerns.

However, since the 2019 program had expired, the court was unable to order that the applications be reconsidered. Instead, the court made declarations that the government breached procedural fairness and, in a highly unusual move, the court ordered the government to pay Redeemer’s legal costs on a full indemnity basis and to pay BCM’s costs on a substantial indemnity basis.

Because both cases were decided on the procedural fairness point, the court did not rule on the Charter argument. Nevertheless, the court made some very interesting comments about the government’s conduct in the Redeemer case. Specifically, the court noted the government had not “made any overt attempt to consider Redeemer’s rights to freedom of religion, freedom of expression or freedom of association in considering its application.” Also, in what can only be considered as a warning to the government, the court held open the possibility that the Charter issue could be considered in a future case where a faith-based organisation is refused funding and stated that: “Such institutions must be treated not just with procedural fairness, but with respect for their Charterprotected rights.”

Whether the government appeals the decision or not remains to be seen, but in the meantime, this case should embolden Christian organisations to continue to assert their rights when necessary and it should also give them some hope that their rights will not simply be disregarded.

Jeffrey A.L. Kriwetz (jkriwetz@ garfinkle.com) is a partner in Garfinkle Biderman LLP Barristers and Solicitors and a member of Lutheran Church–Canada’s Commission on Adjudication. Please note that the views expressed in this article are those of the writer and have been provided for information purposes only. Nothing in this article should be relied on as specific legal advice in any particular case. For such advice, please contact the writer directly.