By Esther S.J. Oh

The Federal Court in Right to Life Association of Toronto v Canada (Employment, Workforce, and Labour) considered whether the Minister of Employment, Workforce, and Labour’s (the “Minister”) decision to add an attestation requirement to the 2018 Canada Summer Jobs program (“CSJ”) was ultra vires, whether the Minister acted in bad faith and with bias against the Applicants, and whether the Applicants’ Charter rights were engaged. The case, released October 22, 2021, arose when the Applicants (The Right to Life Association of Toronto and Area [“TRTL”] along with its former president and a student seeking re-employment with TRTL) sought judicial review after the Minister did not consider TRTL’s application for funding on the basis that TRTL did not make the required attestation.

In this regard, the Minister had added an attestation as an eligibility requirement for the 2018 CSJ program whereby all applicants were required to attest that the job and the organization’s mandate respected individual human rights, Charter rights and reproductive rights (the “attestation”), as discussed in more general terms in the February 2018 Charity & NFP Law Update. The 2018 Applicant Guide stated that failing to check the box agreeing to the attestation would result in an incomplete application and the application for funding would not be considered by the Minister. As mentioned above, TRTL did not check the box agreeing to the attestation but instead included a letter which explained that they could not make the attestation on the basis of conscience and that making the attestation would be inconsistent with their fundamental personal beliefs about the value of life and the right to life under section 7 of the Charter. As a substitution for the attestation, TRTL’s letter confirmed that TRTL was able to “to attest that ‘we support all Canadian law, including Charter and human rights law.’”

The Federal Court did not agree with the Applicants’ position that the attestation included in the 2018 CSJ application was ultra vires (i.e. an act beyond the Minister’s legal power or authority). Instead, the court found that the attestation was within the powers of the Minister as set out in sections 5 and 7 of the Department of Employment and Social Development Act which grant the Minister broad discretion to implement programs designed to contribute to the social development of Canada. The inclusion of the attestation was to prioritize funding to groups that would respect Charter and other rights and that would provide job opportunities for vulnerable groups or to those who would benefit or serve those vulnerable groups – the effect to exclude TRTL was not the purpose.

The Federal Court also found that there was no bad faith, irrelevant considerations, or improper purposes on the part of the Minister. Because the attestation was within the Minister’s authority and because there was no evidence that the government worked with pro-choice groups regarding a strategy to defund pro-life groups (as had been alleged), the court dismissed these claims. Additional arguments by TRTL that the Minister’s decision to add the attestation reflected a closed mind or reasonable apprehension of bias were dismissed on the basis they were unsupported by evidence. The Applicants failed to establish any other breach of procedural fairness.

The Applicants claimed that their Charter rights to freedom of religion (section 2(a)), freedom of expression (section 2(b)), and equality (section 15) were infringed. Though the attestation’s purpose was to broadly promote Charter rights, the court found that it did engage the Applicants’ rights to freedom of religion and expression. Nevertheless, the Federal Court concluded that the decision to add the attestation was a proportional balancing of the Applicants’ rights with the objectives of the 2018 CSJ program to protect and promote Charter rights and values. Despite the Applicants complete exclusion from funding, the Court found that the limitation was minimal as it was a one-time impact on potential – not certain – funding for the summer of 2018. The nature of the balancing exercise that the court engaged in recognized that rights are not absolute, and the rights of some may inevitably yield to the rights of others. As a result, the Minister’s policy decision was found to be reasonable and owed deference. The application for judicial review was dismissed.

This case underscores that Charter rights are not absolute and the courts may become involved in balancing competing rights in such cases subject to the facts of the case.

Read the November 2021 Charity & NFP Law Update