BCM International v. Canada

A registered charity running summer camps for youth filed court applications against the federal government after the charity’s applications for a 2019 Canada Summer Jobs grants was denied.

BCM (Canada) International runs Mill Stream Bible Camp & Retreat Centre, located near Peterborough, Ontario. The summer camp provides recreational and religious programs for youth aged 5 to 15.

For over a decade, BCM had received Canada Summer Jobs grants. BCM used the funds to provide summer jobs for high school and college students to work at its camps. But in 2018, the federal government rejected BCM’s applications because BCM could not accept the controversial 2018 Canada Summer Jobs (CSJ) attestation which required BCM to express agreement with the following statement:

Both the job and the 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. These include 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, sexual orientation, or gender identity or expression.

The Justice Centre commenced a court action across Canada, challenging this “attestation” as compelled speech that violates freedom of expression as protected by the Charter.

In December 2018, Employment, Workforce and Labour Minister Patty Hajdu announced the federal government was scrapping the controversial 2018 Canada Summer Job attestation. The new attestation for 2019 states: “Any funding under the Canada Summer Jobs program will not be used to undermine or restrict the exercise of rights legally protected in Canada.”

In January, BCM submitted an application for a Canada Summer Jobs grant to employ young people at Mill Stream again, but Service Canada rejected the CSJ application on May 2.

Without any explanation, Service Canada claimed that the summer camp positions at Mill Stream for students would “restrict access to programs, services, or employment, or otherwise discriminate, 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.”

BCM’s only option to appeal was to file an application for judicial review, with the help of the Justice Centre.

Documents uncovered by the Justice Centre in the litigation reveal that Mill Stream was deemed ineligible for grants from the Canada Summer Jobs program on account of its Christian beliefs. Documents obtained by the Justice Centre record how government employees described the summer camps’ beliefs as “controversial church doctrine along with discriminating hiring practices based on church beliefs”, and denied the summer camps’ applications, without providing the summer camps with any opportunity to respond to these accusations.

As explained in a filed affidavit, some of the positions at Mill Stream require a mature understanding of Christian beliefs. Hence, Mill Stream used an employment application forms that included a section asking applicants about Christian beliefs, so as to allow the summer camp “to determine what role they are able to fulfill” at the camp.

Mill Stream is one of numerous religious summer camps barred from receiving Canada Summer Jobs grants in 2019. According to an internal government email obtained by the Justice Centre, the new 2019 rule used to bar these camps from the CSJ program was created under the specific direction of the Prime Minister.

A November 16, 2018 “secret” internal memo to federal Labour Minister Patricia Hajdu about eligibility (“the Eligibility Memo”) proposed two different options for new “ineligibility criteria” for organizations applying for grants. Option A deemed ineligible employers who “discriminate on the basis of prohibited grounds”, including religion, among other ineligibility criteria. Option B did not include the focus on whether employers “discriminate”; rather, it focused on the nature of the specific projects and job activities set out in an organization’s CSJ application.

The Eligibility Memo noted that government staff were going to take more time “related to screening and assessment” of CSJ applications, and raised the concern that under Option A “too many” organizations, specifically “faith-based employers” would be deemed ineligible. The Eligibility Memo states that under Option A “[e]mployers governed by or linked to faith-based organizations would disproportionately be deemed ineligible for grants given potential links made by program staff to broader doctrine adhered to by faith based organizations.” The Eligibility Memo specifically mentioned the heightened risk to “a faith-based employer that runs a summer camp”.

In response to the Eligibility Memo’s recommendations to Minister Hajdu, the Prime Minister became directly involved in framing the new rules.  A November 12, 2018 email states “Please find attached language that [has] been approved by the Prime Minister and the Minister.”  The language approved by Prime Minister Trudeau and Minister Hajdu specifically added “restrict[ing] access to … employment” on the basis of religion (and other enumerated grounds) as grounds to deny a CSJ grant to a summer camp.

Utilizing this new rule and citing Mill Stream’s religious beliefs, CSJ staff deemed BCM’s application for CSJ grants ineligible.

In its court application, BCM asks the court for a declaration that the decision deeming Mill Stream ineligible to apply for CSJ grants was unreasonable, and unreasonably interfere with BCM’s rights protected under sections 2(a), 2(b) and 15 of the Charter. BCM also seeks a declaration that the decision-making process, breached the duty of procedural fairness owed to BCM by failing to provide notice of the case to be met, and by acting with bias and bad faith. Finally, BCM seeks a court order to approve its application for summer students grants and quash the decision deeming Mill Stream ineligible for CSJ grants.

This case was argued before Justice Richard Mosley on April 14, 2021.

On June 29, 2021, the Federal Court struck down the discriminatory federal government decision against Mill Stream Bible Camp

The Honourable Justice Richard Mosley ruled the summer camp was denied procedural fairness, and had been subjected to an unreasonable decision to withhold $45,600 to fund six jobs for summer camp counsellors. The federal court ordered legal costs to be paid by the government to the summer camp.

Justice Mosley determined a Charter analysis of the decision to deny the CSJ application was not required, because the case could be decided on other grounds.

The Justice noted, “The Minister did not provide [BCM] an opportunity to provide relevant evidence” in denying the decision. Justice Mosley specifically noted “nothing in the correspondence” between the government department and the summer camp would have suggested the project would be deemed ineligible. “As a result, the Minister breached her procedural fairness obligation.” Further, wrote Justice Mosley in his decision, the evidence before the court suggested that the government in fact considered a different summer camp in Nova Scotia deemed by government bureaucrats to have “controversial church beliefs”, and used that to justify its decision to refuse funding for Mill Stream Bible Camp.

The Justice noted the Minister never assessed if the summer camp discriminated, yet still denied the project on the basis of unspecified discrimination. Justice Mosley noted, “It remains to be considered, perhaps in another case, whether government officials should be basing their program advice to Ministers on their opinions of what constitutes ‘controversial church beliefs.’”

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