Feb 2018 Charity & NFP Law Update
On January 30, 2018, the Federal Court delivered its decision in Right to Life Association of Toronto and Area, Blaise Alleyne and Matthew Battista v Canada (Minister of Employment, Workforce, and Labour). In this case, the Right to Life Association of Toronto and Area (the “RTL”), its president, and a prospective summer student (the “Applicants”) introduced a motion seeking an interlocutory injunction to stay the decision of the Minister of Employment, Workforce Development and Labour (the “Minister”) to add a new mandatory attestation requirement to the application for the 2018 Canada Summer Jobs Program (the “Attestation”). The Attestation consists of four statements, including the following:
Both the job and the applying organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights, including reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability or sexual orientation, or gender identity or expression
The Canada Summer Jobs 2018 Application Guide further explains that the government “recognizes that women’s rights are human rights. This includes sexual and reproductive rights — and the right to access safe and legal abortions.”
The motion for an interlocutory injunction aimed to temporarily suspend the deadline to apply for the 2018 Canada Summer Jobs Program, last extended to February 9, 2018, until the court decided on the merits of an underlying application for judicial review. That application challenged the constitutionality of the Attestation as being compelled speech by the government and thus infringing upon the Applicant’s freedom of conscience, thought, belief, opinion, expression, and right to equality. In dismissing the motion for interlocutory injunction, the Federal Court held the Applicants had not met the elements of the three-part test established by the Supreme Court of Canada in RJR-Macdonald Inc v Canada (Attorney General)(1994).
The Applicants had to establish that a serious issue had been raised in the underlying application for judicial review, demonstrate a real probability that irreparable harm would result from not granting the interlocutory injunction, and that, on a balance of convenience, the harm to the Applicants by denying the interlocutory injunction would be greater than that to the Minister and the public interest. In this regard, the motion judge held that the Applicants had failed to demonstrate that they would suffer irreparable harm if the interlocutory injunction was not granted, and that the balance of convenience favoured dismissing the motion because a stay of the Minister’s decision to include the Attestation would cause irreparable harm to the public interest.
On January 23, 2018, after the hearing of the motion, the Canada Summer Jobs 2018 Program’s website published a “Supplementary Information” page containing hypothetical examples of faith-based organizations with anti-abortion beliefs that would be eligible to apply. However, by the application deadline of February 9, 2018, the Attestation remained as originally introduced and the decision of whether the Attestation infringes upon the rights protected under the Charter of Rights and Freedoms, expected to be decided later this year, will only address this issue for 2019. As such, charities and not-for-profits with an interest in the Canada Summer Jobs Program will need to continue to monitor this case going forward.