By Jennifer M. Leddy

In Redeemer University College v Canada (Employment, Workforce Development and Labour), the Federal Court found that the Minister of Employment, Workforce Development and Labour (“Minister”) breached procedural fairness when it rejected Redeemer University College’s (“Redeemer”) application for funding from the Canada Summer Jobs (“CSJ”) program in 2019. Justice Mosley of the Federal Court also made a rare order for the respondent Minister to pay the entirety of Redeemer’s legal costs in the June 29, 2021 decision.

Redeemer, a faith-based university and registered charity, had applied for and received CSJ funding from 2006 through 2017. Redeemer’s 2018 CSJ application was denied after it refused to include a compulsory attestation that its core mandate affirmed reproductive rights, such as abortion, which Redeemer considered to be contrary to its religious beliefs and values. That attestation was removed from the 2019 CSJ program requirements and replaced with a statement attesting that CSJ funds would not be used to undermine or restrict the exercise of rights legally protected in Canada. Additionally the 2019 requirements included a new question requiring organizations to specify how they would provide a safe, inclusive, and healthy work environment free of harassment and discrimination. Included in this was a requirement that organizations implement measures to ensure their hiring practices and work environments were free of harassment and discrimination.

Redeemer submitted its completed application for the 2019 CSJ program. Its application was subsequently deemed high-risk because of information found on the university’s website from 2011-2012 and 2014-2015, as well as a recent article about faith-based institutions. The reviewing agency, Employment and Social Development Canada (“ESDC”), then sent a letter requesting additional information and clarification about measures to provide a workplace free of harassment and discrimination (the “Letter”). Redeemer replied by providing the ESDC with documents outlining its policies and procedures regarding harassment and discrimination as well as its health and safety training.

Upon receiving these materials, the ESDC recommended that Redeemer’s application be determined to be ineligible for funding on the grounds of harassment and discrimination. That decision was the subject of the judicial review application to the Federal Court, where Redeemer argued that it was denied procedural fairness and that the decision interfered with its rights under sections 2(a), 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms (“Charter”).

Justice Mosley found that the Minister breached the rules of procedural fairness which require, among other things, that there be notice of the case to be met and the opportunity to provide relevant evidence to the decision maker (as set out in Vakulenko v Canada (Minister of Citizenship and Immigration)). In particular, Justice Mosley took issue with how nothing in the Letter indicated that the Minister believed that Redeemer unlawfully discriminates or that she took issue with any of Redeemer’s policies. Nor did the Letter mention that the Minister’s determination was based on information found on the internet.

With regard to the Charter claims, Justice Mosley found, based on the principle of judicial restraint (as set out in Taseko Mines Limited v Canada (Environment)), that the Court should avoid making pronouncements on Charter questions if it is not necessary to resolve an application for judicial review. Therefore, he did not consider Redeemer’s Charter claims. Justice Mosley did note, however, that if a future case were to arise in which officials “discriminated in administering funding programs against faith-based institutions because of the sincerely held religious beliefs of their community, a finding of a Charter violation may well result.” He concluded by finding that both procedural fairness and respect for Charter-protected rights are essential in the treatment of faith-based institutions.

This case serves as a reminder that charities are entitled to procedural fairness when their applications for federal funding are reviewed. Faith-based institutions have further rights under section 2 of the Charter, which may be relevant in cases where applications are not resolved by other means.

Read the August 2021 Charity & NFP Law Update